Terms and Conditions
SCHEDULE A – TERMS OF SERVICE
1. DEFINITIONS. As used in this Agreement: 1.1 “Confidential Information” means all information regarding a party’s business, including,
without limitation, technical, marketing, financial, employee, planning and other confidential or
proprietary information, disclosed under this Agreement, that is clearly identified as confidential or
proprietary at the time of disclosure or that the receiving party knew or should have known, under the
circumstances, was considered confidential or proprietary. Colligo’s Confidential Information includes
information derived from or concerning the Service, the System or the Documentation and the terms of
this Agreement. Customer’s Confidential Information includes the Customer.
1.2 “Customer Data” means any data, information or information contained in any database, template or other similar document (a) submitted by Customer or a User through the Service, (b) provided by Customer or a User to Colligo as part of the Service, or (c) supplied to Colligo by or on behalf of Customer.
1.3 “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms made available by Colligo that describe the features, functionality or operation of the Service and the System.
1.4 “Fees” is defined in Section 4.
1.5 “Force Majeure Event” is defined in Section 11.3.
1.6 “Gold Support Services” means any professional or premium support services to be provided by Colligo described in an Order Form.
1.7 “Order Form” means collectively the order documents representing Customer’s initial subscription to the Serviceand any subsequent modifications to the subscription, as well as any purchases of Gold Support Services, agreed to between the parties in writing from time to time, that, upon execution, are incorporated in and made a part of this Agreement from time to time.
1.8 “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.
1.9 “Privacy Laws” means all applicable federal and provincial legislation and regulations governing the collection, use and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial, state, federal and international legislation.
1.10 “Privacy Policy” means Colligo’s privacy policy located at https://www.colligo.com/privacy-policy/, as it may be amended from time to time.
1.11 “Reseller” means Colligo’s authorized reseller that Customer used to subscribe for the Service, if applicable.
1.12 “Service” means the on-line software as a service offerings delivered by Colligo to Customer using the System, as made available by Colligo from time-to-time as specified in the Order Form.
1.13 “Silver Support Services” is defined in Section 2.2.
1.14 “System” means the technology, including hardware, software and systems, used by Colligo to deliver the Service to Customer in accordance with this Agreement.
1.15 UserID” is defined in Section 3.1
1.16 “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. THE SERVICE.
2.1 Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperating with the reasonable requests of Colligo; and (c) providing Colligo with access to Customer’s internal systems and any required third party systems (and making all required third party disclosures and obtaining all required third party consents in respect of such access) from which Customer wishes the System to access Customer Data, Colligo hereby grants to Customer a non-sublicensable, nontransferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Colligo constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Colligo with respect to future functionality or features.
2.2 Silver Support Services. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4, Colligo will provide Customer with the support services described in Colligo’s then-current Customer Support Plan made available at https://www.colligo.com/media/Silver-Customer-Support-Plan.pdf (the “Silver Support Services”).
2.3 Gold Support Services. Customer may from time to time order Gold Support Services under this Agreement by entering into an Order Form between the parties setting out the description of Gold Support Services to be provided by Colligo and the applicable fees, payment terms, performance standards and timeline for delivery of such Gold Support Services.
2.4 System Updates and Scheduled Downtime. Colligo may update any aspect of the Service or System at any time in its sole discretion. Colligo may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.
2.5 Privacy Policy. To the extent any Customer Data contains Personal Information, it will be used, collected, stored and disclosed for the purposes contemplated under this Agreement and in accordance with the Privacy Policy.
2.6 Internet Security Disclaimer. Customer acknowledges and agrees that Colligo exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Colligo’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.7 Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Colligo under this Agreement, Colligo may suspend, terminate or limit, in Colligo’s reasonable discretion, Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Colligo from harm to its reputation or business. Colligo will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Colligo will restore Customer’s access to the Service when Colligo determines the event has been resolved. Nothing in this Agreement will limit Colligo’s right to take any action or invoke remedies, or will act as a waiver of Colligo’s rights in any way with respect to any of the foregoing activities. Colligo will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.7.
2.8 Subcontractors. Customer acknowledges and agrees that Colligo may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Colligo in providing, the Service. Any Subcontractors used by Colligo to provide the Service shall remain under the direction and control of Colligo, and Colligo shall be fully and personally liable for all acts or omissions of the Subcontractors.
3. CUSTOMER’S USE OF THE SERVICE.
3.1 Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Colligo for each User. A User may only access and use the Service with his or her specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Colligo of any actual or suspected unauthorized use of the Service. Colligo may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, provincial, federal and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to:
(a) use the Service other than as permitted by this Agreement;
(b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
(c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
(d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
(e) use or launch any automated system, including without limitation any “robot” or “spider”
that accesses the Service; or
(f) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
(a) use the Service other than as permitted by this Agreement;
(b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
(c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
(d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
(e) use or launch any automated system, including without limitation any “robot” or “spider”
that accesses the Service; or
(f) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
3.3 Customer Data. Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates
any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Colligo may take remedial action if Customer Data violates this Section 3.3, however, Colligo is under no obligation to review Customer Data for accuracy or potential liability.
any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Colligo may take remedial action if Customer Data violates this Section 3.3, however, Colligo is under no obligation to review Customer Data for accuracy or potential liability.
4. FEES, PAYMENT AND SUSPENSION. As consideration for the subscription to the Service and the Gold Support Services, Customer will pay Colligo or the Reseller, as applicable, the fees (“Fees”) set forth in and in accordance with the Order Form. Unless otherwise agreed to in the Order Form , all Fees will be billed in advance on an annual basis and are due within 30 days following the date of invoice. Overdue amounts will accrue interest at the rate of [12%] per annum, or the highest legal interest rate, if less. Customer shall reimburse Colligo or the Reseller, as applicable, for all expenses (including reasonable attorneys’ fees) incurred by Colligo or the Reseller to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Colligo’s or the Reseller’s net income.
Colligo reserves the right (in addition to any other rights or remedies Colligo may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than [30] days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. CONFIDENTIAL INFORMATION.
5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of he public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful
possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. OWNERSHIP.
6.1 System and Technology. Customer acknowledges that Colligo retains all right, title and interest in and to the Service, the System and all software, materials, formats, interfaces, information, data, content and Colligo proprietary information and technology used by Colligo or provided to Customer in connection with the Service and the Gold Support Services (collectively, the “Colligo Technology”), and that the Colligo Technology is protected by intellectual property rights owned by or licensed to Colligo. Other than as expressly set forth in this Agreement, no license or other rights in the Colligo Technology are granted to the Customer, and all such rights are hereby expressly reserved by Colligo. Colligo will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
6.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Except as set out in Section 6.3, Colligo will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Colligo all necessary licenses in and to such Customer Data solely as necessary for Colligo to provide the Service to Customer and the Users.
6.3 Usage Data. Customer acknowledges and agrees that Colligo may collect technical usage and performance data, metadata and other anonymized information regarding Customer’s and the Users’ usage of the Service and System (collectively, “Usage Data”), and may use such Usage Data for Colligo’s internal business purposes, including without limitation to develop and improve the Service, the System and Colligo’s other current and future products and services.
7. TERM AND TERMINATION.
7.1 Term. Unless otherwise agreed to in the Order Form, the term of this Agreement will commence on the Effective Date and continue for [one year] (the “Initial Term”). Thereafter, this Agreement will be automatically renewed from year to year for additional one year renewal terms (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no less than 60 days prior to the expiration of the then-current Initial Term or Renewal Term indicating that it does not wish to renew this Agreement.
7.2 Termination for Default. Either party may terminate this Agreement immediately upon written notice if: (a) the other party materially breaches this Agreement and does not cure such breach (if curable) within [30] days after written notice of such breach; or (b) the other party becomes insolvent or files or has filed against it a petition in bankruptcy.
7.3 Effect of Termination. Upon the termination of this Agreement for any reason: (a) any amounts owed to Colligo under this Agreement before such termination will become immediately due and payable; (b) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control; and (c) Customer’s and each User’s access to and use of the System and the Service will be immediately suspended. Colligo agrees that within [30] days following any termination of this Agreement, Colligo will provide Customer with one electronic copy of the Customer Data in a usable format. Thereafter, Colligo will remove all Customer Data from the System. The rights and duties of the parties under Sections 3.3, 4 through 6, 7.3 and 8 through 11 will survive the termination or expiration of this Agreement.
8. WARRANTY; DISCLAIMER.
8.1 Warranty. Colligo represents and warrants to Customer that (a) the Service will perform materially as described in the technical specifications set forth in the Documentation, and (b) it will perform the Gold Support Services in a diligent and businesslike manner using reasonable care and skill.
In the event of any failure of the Service or the Gold Support Services to conform to the above applicable warranties, Colligo will, as Customer’s sole and exclusive remedy, re-perform the non-conforming Service or Gold Support Services.
In the event of any failure of the Service or the Gold Support Services to conform to the above applicable warranties, Colligo will, as Customer’s sole and exclusive remedy, re-perform the non-conforming Service or Gold Support Services.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN SECTION 8.1: (A) THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY PROVIDER TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (B) PROVIDER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE; (C) PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE; AND (D) WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. PROVIDER IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY PROVIDER, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY PROVIDER. THE SERVICE IS OFFERED AND CONTROLLED BY PROVIDER FROM ITS FACILITIES IN CANADA. PROVIDER MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR
OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
9. INDEMNITY.
9.1 By Colligo. If any action is instituted by a third party against Customer based upon a claim that the Service or System, as delivered, infringes any third party intellectual property rights in Canada, Colligo shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim.
Colligo may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Colligo shall have no liability to Customer
for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without Colligo’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Colligo. This Section 9.1 sets forth the entire obligation of Colligo and the exclusive remedy of Customer against Colligo or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Service or System.
Colligo may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Colligo shall have no liability to Customer
for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without Colligo’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Colligo. This Section 9.1 sets forth the entire obligation of Colligo and the exclusive remedy of Customer against Colligo or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Service or System.
9.2 By Customer. If any action is instituted by a third party against Colligo arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by Colligo pursuant to this Agreement, infringes any third party intellectual property rights or other rights of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Colligo and shall pay all damages attributable to such claim which are finally awarded against Colligo or paid in settlement of such claim. Customer shall have no obligation under this Section 9.2 for any claim or action that is described in Section 9.1 or arises out of a breach of this
Agreement by Colligo.
Agreement by Colligo.
9.3 Conditions. Any party that is seeking to be indemnified under the provisions of thisSection 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (i) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (ii) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (iii) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. LIMITATION OF LIABILITY. The following provisions have been negotiated by each party , are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
10.1 Amount. PROVIDER’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PROVIDER AND/OR THE RESELLER UNDER THIS AGREEMENT IN THE [12] MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL PROVIDER’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGH CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10.4 No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
10.5 Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose.
11. GENERAL PROVISIONS
11.1 Publicity. Colligo may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Colligo to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Colligo and user of the Service.
11.2 Assignment. Customer may not assign this Agreement to a third party without Colligo’s prior written consent, not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. Colligo may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
11.3 Force Majeure. If the performance of any obligation under this Agreement, except non payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, epidemics and pandemics, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes
of non-performance.
11.4 Arbitration. Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Notwithstanding the foregoing, Colligo may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Colligo through injunctive relief and other equitable remedies without proof of monetary damages.
11.5 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.6 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (a) to Colligo, by email at info@colligo.com or by certified mail at 300-1090 Homer Street, Vancouver BC, V6B 2W9, Canada; or (b) to Customer, by email or by certified mail at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused.
11.7 Entire Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. This Agreement may only be modified in writing signed by both parties.
11.8 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreemen
1.2 “Customer Data” means any data, information or information contained in any database, template or other similar document (a) submitted by Customer or a User through the Service, (b) provided by Customer or a User to Colligo as part of the Service, or (c) supplied to Colligo by or on behalf of Customer.
1.3 “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms made available by Colligo that describe the features, functionality or operation of the Service and the System.
1.4 “Fees” is defined in Section 4.
1.5 “Force Majeure Event” is defined in Section 11.3.
1.6 “Gold Support Services” means any professional or premium support services to be provided by Colligo described in an Order Form.
1.7 “Order Form” means collectively the order documents representing Customer’s initial subscription to the Serviceand any subsequent modifications to the subscription, as well as any purchases of Gold Support Services, agreed to between the parties in writing from time to time, that, upon execution, are incorporated in and made a part of this Agreement from time to time.
1.8 “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws.
1.9 “Privacy Laws” means all applicable federal and provincial legislation and regulations governing the collection, use and disclosure of Personal Information in the jurisdictions where Customer has subscribed to use the Service, which may include the Personal Information and Protection of Electronic Documents Act (Canada) and equivalent provincial, state, federal and international legislation.
1.10 “Privacy Policy” means Colligo’s privacy policy located at https://www.colligo.com/privacy-policy/, as it may be amended from time to time.
1.11 “Reseller” means Colligo’s authorized reseller that Customer used to subscribe for the Service, if applicable.
1.12 “Service” means the on-line software as a service offerings delivered by Colligo to Customer using the System, as made available by Colligo from time-to-time as specified in the Order Form.
1.13 “Silver Support Services” is defined in Section 2.2.
1.14 “System” means the technology, including hardware, software and systems, used by Colligo to deliver the Service to Customer in accordance with this Agreement.
1.15 UserID” is defined in Section 3.1
1.16 “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.
2. THE SERVICE.2.1 Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperating with the reasonable requests of Colligo; and (c) providing Colligo with access to Customer’s internal systems and any required third party systems (and making all required third party disclosures and obtaining all required third party consents in respect of such access) from which Customer wishes the System to access Customer Data, Colligo hereby grants to Customer a non-sublicensable, nontransferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form. Only the execution of an Order Form by Customer and by Colligo constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Colligo with respect to future functionality or features.
2.2 Silver Support Services. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4, Colligo will provide Customer with the support services described in Colligo’s then-current Customer Support Plan made available at https://www.colligo.com/media/Silver-Customer-Support-Plan.pdf (the “Silver Support Services”).
2.3 Gold Support Services. Customer may from time to time order Gold Support Services under this Agreement by entering into an Order Form between the parties setting out the description of Gold Support Services to be provided by Colligo and the applicable fees, payment terms, performance standards and timeline for delivery of such Gold Support Services.
2.4 System Updates and Scheduled Downtime. Colligo may update any aspect of the Service or System at any time in its sole discretion. Colligo may schedule downtime for maintenance and upgrades to the System without prior notice but will use commercially reasonable efforts to provide advance notice where practicable.
2.5 Privacy Policy. To the extent any Customer Data contains Personal Information, it will be used, collected, stored and disclosed for the purposes contemplated under this Agreement and in accordance with the Privacy Policy.
2.6 Internet Security Disclaimer. Customer acknowledges and agrees that Colligo exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Colligo’s control. Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.
2.7 Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Colligo under this Agreement, Colligo may suspend, terminate or limit, in Colligo’s reasonable discretion, Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Colligo from harm to its reputation or business. Colligo will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable. In the event of a limitation or suspension, Colligo will restore Customer’s access to the Service when Colligo determines the event has been resolved. Nothing in this Agreement will limit Colligo’s right to take any action or invoke remedies, or will act as a waiver of Colligo’s rights in any way with respect to any of the foregoing activities. Colligo will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.7.
2.8 Subcontractors. Customer acknowledges and agrees that Colligo may retain the services of independent contractors (“Subcontractors”) from time to time to provide, or to assist Colligo in providing, the Service. Any Subcontractors used by Colligo to provide the Service shall remain under the direction and control of Colligo, and Colligo shall be fully and personally liable for all acts or omissions of the Subcontractors.
3. CUSTOMER’S USE OF THE SERVICE.3.1 Access and Security Guidelines. Subject to any limitations associated with Customer’s subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Colligo for each User. A User may only access and use the Service with his or her specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users. Customer will promptly notify Colligo of any actual or suspected unauthorized use of the Service. Colligo may require that a UserID be replaced at any time.
3.2 Customer Responsibilities and Restrictions. Customer will, at all times, comply with all applicable local, state, provincial, federal and foreign laws in using the Service. Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person, including without limitation the Users, to:
(a) use the Service other than as permitted by this Agreement;
(b) use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, intellectual property rights, proprietary rights, contractual rights or any other legal right;
(c) sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a service bureau;
(d) copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
(e) use or launch any automated system, including without limitation any “robot” or “spider”
that accesses the Service; or
(f) interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
3.3 Customer Data. Customer is solely responsible for the Customer Data and will not provide or transmit any Customer Data or any other information, data or material that: (a) infringes or violates
any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information. Colligo may take remedial action if Customer Data violates this Section 3.3, however, Colligo is under no obligation to review Customer Data for accuracy or potential liability.
4. FEES, PAYMENT AND SUSPENSION. As consideration for the subscription to the Service and the Gold Support Services, Customer will pay Colligo or the Reseller, as applicable, the fees (“Fees”) set forth in and in accordance with the Order Form. Unless otherwise agreed to in the Order Form , all Fees will be billed in advance on an annual basis and are due within 30 days following the date of invoice. Overdue amounts will accrue interest at the rate of [12%] per annum, or the highest legal interest rate, if less. Customer shall reimburse Colligo or the Reseller, as applicable, for all expenses (including reasonable attorneys’ fees) incurred by Colligo or the Reseller to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Colligo’s or the Reseller’s net income.
Colligo reserves the right (in addition to any other rights or remedies Colligo may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than [30] days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times. 5. CONFIDENTIAL INFORMATION.5.1 Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
5.2 Exceptions. The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of he public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful
possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. OWNERSHIP.6.1 System and Technology. Customer acknowledges that Colligo retains all right, title and interest in and to the Service, the System and all software, materials, formats, interfaces, information, data, content and Colligo proprietary information and technology used by Colligo or provided to Customer in connection with the Service and the Gold Support Services (collectively, the “Colligo Technology”), and that the Colligo Technology is protected by intellectual property rights owned by or licensed to Colligo. Other than as expressly set forth in this Agreement, no license or other rights in the Colligo Technology are granted to the Customer, and all such rights are hereby expressly reserved by Colligo. Colligo will have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
6.2 Customer Data. Customer retains all right, title and interest in and to the Customer Data. Except as set out in Section 6.3, Colligo will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Colligo all necessary licenses in and to such Customer Data solely as necessary for Colligo to provide the Service to Customer and the Users.
6.3 Usage Data. Customer acknowledges and agrees that Colligo may collect technical usage and performance data, metadata and other anonymized information regarding Customer’s and the Users’ usage of the Service and System (collectively, “Usage Data”), and may use such Usage Data for Colligo’s internal business purposes, including without limitation to develop and improve the Service, the System and Colligo’s other current and future products and services.
7. TERM AND TERMINATION.7.1 Term. Unless otherwise agreed to in the Order Form, the term of this Agreement will commence on the Effective Date and continue for [one year] (the “Initial Term”). Thereafter, this Agreement will be automatically renewed from year to year for additional one year renewal terms (each a “Renewal Term”, and together with the Initial Term, the “Term”), unless either party provides written notice to the other party no less than 60 days prior to the expiration of the then-current Initial Term or Renewal Term indicating that it does not wish to renew this Agreement.
7.2 Termination for Default. Either party may terminate this Agreement immediately upon written notice if: (a) the other party materially breaches this Agreement and does not cure such breach (if curable) within [30] days after written notice of such breach; or (b) the other party becomes insolvent or files or has filed against it a petition in bankruptcy.
7.3 Effect of Termination. Upon the termination of this Agreement for any reason: (a) any amounts owed to Colligo under this Agreement before such termination will become immediately due and payable; (b) each party will return to the other party all property (including any Confidential Information) of the other party in its possession or control; and (c) Customer’s and each User’s access to and use of the System and the Service will be immediately suspended. Colligo agrees that within [30] days following any termination of this Agreement, Colligo will provide Customer with one electronic copy of the Customer Data in a usable format. Thereafter, Colligo will remove all Customer Data from the System. The rights and duties of the parties under Sections 3.3, 4 through 6, 7.3 and 8 through 11 will survive the termination or expiration of this Agreement.
8. WARRANTY; DISCLAIMER.8.1 Warranty. Colligo represents and warrants to Customer that (a) the Service will perform materially as described in the technical specifications set forth in the Documentation, and (b) it will perform the Gold Support Services in a diligent and businesslike manner using reasonable care and skill.
In the event of any failure of the Service or the Gold Support Services to conform to the above applicable warranties, Colligo will, as Customer’s sole and exclusive remedy, re-perform the non-conforming Service or Gold Support Services.
8.2 Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN SECTION 8.1: (A) THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY PROVIDER TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (B) PROVIDER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE; (C) PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE; AND (D) WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. PROVIDER IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF, ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INTERNET SERVICE PROVIDERS, HOSTING SERVICES UTILIZED BY PROVIDER, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR HARDWARE NOT PROVIDED BY PROVIDER. THE SERVICE IS OFFERED AND CONTROLLED BY PROVIDER FROM ITS FACILITIES IN CANADA. PROVIDER MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER JURISDICTIONS DO SO AT THEIR
OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
9. INDEMNITY.9.1 By Colligo. If any action is instituted by a third party against Customer based upon a claim that the Service or System, as delivered, infringes any third party intellectual property rights in Canada, Colligo shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim.
Colligo may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Colligo shall have no liability to Customer
for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without Colligo’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Colligo. This Section 9.1 sets forth the entire obligation of Colligo and the exclusive remedy of Customer against Colligo or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Service or System.
9.2 By Customer. If any action is instituted by a third party against Colligo arising out of or relating to: (a) Customer’s use of the Service or System (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data by Colligo pursuant to this Agreement, infringes any third party intellectual property rights or other rights of a third party, or otherwise causes harm to a third party, Customer will defend such action at its own expense on behalf of Colligo and shall pay all damages attributable to such claim which are finally awarded against Colligo or paid in settlement of such claim. Customer shall have no obligation under this Section 9.2 for any claim or action that is described in Section 9.1 or arises out of a breach of this
Agreement by Colligo.
9.3 Conditions. Any party that is seeking to be indemnified under the provisions of thisSection 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party sole control over the defense of such Claim. However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure. The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (i) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (ii) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (iii) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party. Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.
10. LIMITATION OF LIABILITY. The following provisions have been negotiated by each party , are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy: 10.1 Amount. PROVIDER’S TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNT OF FEES PAID BY CUSTOMER TO PROVIDER AND/OR THE RESELLER UNDER THIS AGREEMENT IN THE [12] MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL PROVIDER’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2 Type. IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (D) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE. IN NO EVENT SHALL THE PROVIDER BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
10.3 No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGH CUSTOMER MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
10.4 No Participating in Class Action. CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE. 10.5 Limitation of Time. Customer agrees that it will not bring a claim under or related to this Agreement more than 12 months from when such claim first arose. 11. GENERAL PROVISIONS 11.1 Publicity. Colligo may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties. Customer agrees to allow Colligo to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Colligo and user of the Service. 11.2 Assignment. Customer may not assign this Agreement to a third party without Colligo’s prior written consent, not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer. Colligo may assign this Agreement or any rights hereunder to any third party without Customer’s consent. Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees. 11.3 Force Majeure. If the performance of any obligation under this Agreement, except non payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a party’s reasonable control, including but not limited to acts of God, labor strikes and other labor disturbances, epidemics and pandemics, power surges or failures, Internet connectivity or the act or omission of any third party (each a “Force Majeure Event”), such party will be excused from such performance to the extent necessary. Each party will use reasonable efforts to implement industry standard procedures to minimize disruption of such Force Majeure Events and will use reasonable efforts to remove such causes
of non-performance. 11.4 Arbitration. Any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration administered by the Vancouver International Arbitration Centre (VanIAC) pursuant to its applicable Rules. The place of arbitration shall be Vancouver, British Columbia, Canada and the language of the arbitration shall be English. The number of arbitrators shall be one. Notwithstanding the foregoing, Colligo may seek and obtain injunctive relief in any jurisdiction in any court of competent jurisdiction and you agree that this Agreement is specifically enforceable by Colligo through injunctive relief and other equitable remedies without proof of monetary damages. 11.5 Choice of Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
11.6 Notices. Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (a) to Colligo, by email at info@colligo.com or by certified mail at 300-1090 Homer Street, Vancouver BC, V6B 2W9, Canada; or (b) to Customer, by email or by certified mail at the addresses set forth in the Order Form. Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address. Notices will be deemed to have been given upon receipt, or when delivery is refused. 11.7 Entire Agreement. This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof. This Agreement may only be modified in writing signed by both parties. 11.8 Severability and Waiver. In the event that any provision of this Agreement is held to be invalid or unenforceable, the valid or enforceable portion thereof and the remaining provisions of this Agreement will remain in full force and effect. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion. All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.9 Relationship of the Parties. The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreemen
