Terms of Use

Cinareo Solutions Inc. (“Company”) owns certain software that it has developed and makes commercially available to its customers for use as a cloud based, managed software as a service offering.

In connection with the use of the Service (as defined below) you and/or your organization or corporation (the “Customer”) hereby agree to the terms of service and conditions contained herein (collectively, the “Terms of Service”).

BY ACCEPTING THE TERMS OF SERVICE, EITHER BY: A) ACCEPTING THE TERMS OF SERVICE ONLINE; B) SIGNING AN ORDER FORM (AS DEFINED BELOW) WHICH REFERENCES THE TERMS OF SERVICE, OR C) USING, OR ACCESSING THE SERVICE AFTER BEING MADE AWARE OF THESE TERMS OF SERVICE, THE CUSTOMER ACKNOWLEDGES THAT IT HAS READ AND UNDERSTOOD ALL OF THE PROVISIONS, AND HAS THE AUTHORITY TO AGREE TO, AND IS CONFIRMING THAT IT IS AGREEING TO, COMPLY WITH AND BE BOUND BY, ALL OF THE TERMS AND CONDITIONS CONTAINED HEREIN, TOGETHER WITH ANY ORDER FORM AND INCLUDING THE COMPANY’S PRIVACY POLICY LOCATED AT HTTPS://WWW.CINAREO.COM ALL OF WHICH ARE INCORPORATED BY REFERENCE AND DEEMED TO BE PART OF THE ENTIRE AGREEMENT ENTERED INTO BETWEEN COMPANY AND THE CUSTOMER.

IF, AFTER READING THE TERMS OF SERVICE, THE CUSTOMER DOES NOT ACCEPT OR AGREE TO THE TERMS AND CONDITIONS CONTAINED HEREIN, THE CUSTOMER SHALL NOT USE, OR ACCESS THE SERVICE.

IF YOU ARE AN AGENT OR EMPLOYEE OF THE CUSTOMER THEN YOU HEREBY REPRESENT AND WARRANT THAT: (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON CUSTOMER’S BEHALF AND TO BIND THE CUSTOMER, AND (II) THE CUSTOMER HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.

 

1. Definitions

1.1 In this Agreement:

“Agreement” means the Order Form and these Terms of Service.

“Customer” means the customer named in the applicable Order Form.

“Customer Data” means the data submitted by or for Customer to the Service or collected and processed by or for Customer using the Service, including the data of and Personal Information belonging to Customer’s employees, contractors or customers.

“Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada) and the Canadian Anti-Spam Legislation, each as amended or superseded from time to time), the European Union, the European Economic Area and their member states, Switzerland, and the United Kingdom, including the GDPR, applicable to the Processing of Personal Data under the Agreement.

“Documentation” means the written or electronic documentation, including user manuals, reference materials, installation manuals and/or release notes, if any, that Company generally makes available to subscribers to the Service, as the case may be.

“GDPR” means the Regulation (EU) 2016/679 of the European Parliament and of the Council of 27 April 2016 on the protection of natural persons with regard to the Processing of Personal Data and on the free movement of such data, and repealing Directive 95/46/EC (General Data Protection Regulation).

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and trojan horses.

“Order Form” means (i) an electronic form provided by Company on its website for ordering Subscriptions, Support Services, and/or other services, or (ii) a written document executed by Company and Customer in respect to Customer’s purchases of Subscriptions, Support Services, and/or other services from Company.

“Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.

“Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

“Service” means the cloud-based hosted software as a service offering, Cinareo™, for which Customer is granted rights of access and use in accordance with this Agreement, including any ancillary services available in connection therewith, as such Service may be updated from time to time by Company in its sole discretion.

“Subscription” means the right granted by Company to Customer to access and use the Service in accordance with these Terms of Service and the applicable Order Form, for the Subscription Term specified in the applicable Order Form.

“Subscription Fee” means the fee payable by Customer for a Subscription as set out in the Order Form.

“Subscription Term” means the period of time that Customer is authorized by Company to access and use the Service (including the Documentation).
“Support Services” means the technical support services for the Service provided by Company to Customer.

“User” means an employee or contractor of Customer whom has been supplied a user identification and password to access the Service.

2. The Service

2.1 Right to Use the Service. Subject to the terms and conditions of this Agreement (including the applicable Order Form) and payment of the applicable Subscription Fees, Company hereby grants to Customer a non-exclusive, worldwide, non-transferable, non-sublicensable, internal right to (a) access and use (and to permit Users to access and use) the Service, solely during the Subscription Term; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Customer’s permitted use of the Service during the Subscription Term.

2.2 Reservation of Rights. Company and its licensors own and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trade-mark rights, trade secret rights and all other intellectual property rights), in and to the Service and Documentation and any copies, corrections, bug fixes, enhancements, modifications or new versions thereof, all of which shall be deemed part of the Service and subject to all of the provisions of this Agreement. Customer shall keep the Service and Documentation free and clear of all liens, encumbrances and/or security interests. Subject to the limited rights expressly granted in this Agreement, Company reserves all rights, title and interest in and to the Service and Documentation. No rights are granted to Customer pursuant to this Agreement other than as expressly set forth in this Agreement.

2.3 Restrictions. Customer shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Service or any part of the Service, including but not limited to any component which comprises the Service, but not including any output from the Service; (b) knowingly interfere with service to any of Company’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing the Service; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Service or Documentation in any form to any person without the written consent of Company; (f) remove any proprietary notices, labels, or marks from the Service or Documentation; (g) create any “links” to or “frame” or “mirror” of the Service or any portion thereof; or (h) use the Service to create, collect, transmit, store, use or process any Customer Data that: (i) Customer does not have the lawful right to create, collect, transmit, store, use or process, or (ii) violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity).

2.4 Aggregated Data. Customer acknowledges and agrees that the Service compiles, stores and uses aggregated data and system usage, analytics and diagnostic information to monitor and improve the Service and for the creation of new products. All data collected, used, and disclosed by Company will be in aggregate, anonymized and/or de-identified form only and will not identify Customer, its Users, Customer Data, Personal Information, or any third parties utilizing the Service.

3. Pilot Service Period

Company may, upon Customer’s request, make the Service available to Customer for a period (the “Pilot Service Period”) pursuant to the terms and conditions of this Agreement to allow Customer to test and validate the Service prior to entering into a Subscription Term. After completion of the Pilot Service Period, Customer’s Subscription shall automatically begin for the Subscription Term and Fees as specified in the Order Form, unless Customer gives Company written notice to not proceed with the Subscription.

4. Account Activation

4.1 Account. Customer is required to open an account with Company (an “Account”) in order to use the Service. Customer shall provide Company with certain Personal Information of its Users in order for Company to create an Account on behalf of Customer’s Users. Customer shall ensure that such Account activation information is accurate and complete and that such information remains current throughout the Subscription Term. Customer is fully responsible for all activity that occurs in Customer’s Account, including for any actions taken by its Users.

4.2 Passwords. Customer is responsible for keeping all Account passwords secure. Company will not be liable for any loss or damage caused by or arising from a failure by Customer or its Users to maintain the security of the Customer’s Account and password.

4.3 Customer Responsibilities. Customer is also responsible for all activity in the Account and for Customer Data uploaded, collected, generated, stored, displayed, distributed, transmitted or exhibited on or in connection with Customer’s Account.

4.4 Multi-Factor Authentication. Customer acknowledges that, in addition to the use of an individual username and password, access to the Service includes a multi-factor authentication security procedure at log-in. This additional security procedure involves a credential that is in addition to username and password security (hereinafter, “Enhanced Log-in Security”). Enhanced Log-In Security will require you to establish and utilize, in addition to your username and password, your own individual authentication through a one-time passcode via SMS text or third-party authenticator app as part of a multi-part credential. These access credentials are used by the Service to authenticate you. If your one-time passcode is entered incorrectly on five (5) consecutive access attempts, access to your Account will be restrictive for a maximum of fifteen (15) minutes.

5. Support Services

5.1  Support. Company will make the Cinareo platform available 24 hours a day, 7 days a week, and use commercially reasonable best efforts to provide 100% uptime, except for any unavailability caused by circumstances beyond Company’s reasonable control, including communicated or emergency maintenance of the platform, failure or delay of Customer’s Internet connection, misconfiguration by Customer or any third party acting on Customer’s behalf, issues on Customer’s network, or telecommunications services contracted directly by Customer. 

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Company is not responsible for the following: 

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1. Loss of data, profits, revenues, business opportunities, goodwill or anticipated savings;  

1. Indirect, incidental, or consequential loss;  

1. Punitive damages; or 

1. Damages relating to failures of telecommunications, the internet, electronic communications, corruption, security, viruses, or spyware. 

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5.2 Severity and Priority . “Severity” is defined as the impact that an issue has on the Customer’s ability to conduct business. Issue severity levels are defined below. “Priority” is defined as the customer-designated level of importance. 

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5.3 Issue Severity Levels. The Severity levels assigned to an issue are defined as follows: 

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1- High Impact  = Customer is able to perform job functions, but performance is degraded or limited. 

2- Medium Impact = Customer’s ability to perform job functions is largely unaffected, but non-critical functions or procedures are unusable or hard to use. A workaround is available. 

3- Low Impact = Service is available and operational; trivial impact to Customer’s business operations or Customer requires information or assistance on the Cinareo capabilities or configuration. 

 

5.4 Designated Contact. Customer must designate a primary contact, and at least one backup in the primary’s absence, to act as a primary liaison between Customer and the Company (the “Designated Contact”). The Designated Contact must be knowledgeable about the Cinareo platform and will participate in troubleshooting support cases. 

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5.5 Preliminary Troubleshooting. When a customer becomes aware of an issue, prior to opening a support case, the Designated Contact must perform reasonable basic troubleshooting and use best efforts to understand the Customer’s areas of responsibility.  

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5.6 Case Submission. Cases for all Severity levels, except High Impacting cases, may be raised by Customer by either phone or through the support portal. Issues designated by Customer as High Impact must be raised by telephone through the applicable customer support number found on the Cinareo website. If a case has been submitted via the support portal and the business impact has increased to High Impact severity, Customer can request support for the case by telephone. Submission of cases via the support portal will include a description of the issue and its business impact. The Designated Contact will include any other information known by the Designated Contact that is reasonably helpful for Company to analyze the issue (example: environmental changes including network or firewall changes, new configurations, previous troubleshooting efforts, etc.). 

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5.7 Severity Assignment. Company prioritizes issues based on the severity level. When a case is opened by Customer, Customer will identify a Priority based on the descriptions in the table above. Customer’s Priority designation will be used as a factor by Company when defining the Severity of an issue. The assigned Severity level for an issue may be mutually redetermined by both Company and Customer during the issue resolution process. Both parties agree to act reasonably in making such a decision. 

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5.8 Target initial response times. Target initial response times are based on the Severity level of each incident. The automated response received by Customer following submission of the case will not be deemed to be Company’s initial response. The initial response is deemed to have been made when the issue has been assigned to the appropriate Company personnel, and Customer receives a human response from Company acknowledging the issue. Company will use reasonable efforts to respond to issues in accordance with the description below: 

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1 - High impact: Response within 2 hours (email or phone) 

2 - Medium impact: Response within 4 hours (email) 

3 - Low impact: Response within 8 hours (email) 

 

5.9 Cooperation. Customer acknowledges that Company’s customer support team may need to be able to reproduce errors in order to resolve them. Customer will cooperate and work closely with Company to reproduce errors, including conducting diagnostic or troubleshooting activities as requested and appropriate.

6. Customer Data and Personal Information

6.1 Ownership. As between Company and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. Company does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data. Customer hereby authorizes Company to use Customer Data as required to provide the Service in accordance with the terms hereof and Company will do so only as a Data Processor acting on behalf of the Customer (as Data Controller) and in accordance with the requirements of this Agreement and applicable Data Protection Laws.

6.2 Technical and Organizational Safeguards. In connection with the provision of the Service, Company will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of the Service and Customer Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Customer Data by Company personnel except (a) to provide the Service and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, (c) as expressly permitted in writing by Customer, or (d) as allowed under applicable Data Protection Laws. Company shall, in connection with the provision of the Service, comply with Data Protection Laws, as well as the Company’s Privacy Policy.

6.3 Customer Data Portability and Deletion. Upon request by Customer made during the term hereof or within thirty (30) days after the effective date of termination of this Agreement, Company will make the Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, Company will have no obligation to maintain or provide any Customer Data, and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.

6.4 Customer’s Obligations Regarding Personal Information. Customer’s instructions to Company for the Processing of Personal Information shall comply with Data Protection Laws. Customer shall have sole responsibility for the accuracy, quality, and legality of Personal Information and the means by which Customer acquired the Personal Information. Customer hereby represents and warrants to, and covenants with Company that Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Company to provide the Service, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Company and to or from all applicable third parties.

6.5 Company’s Processing of Personal Information. Company shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. Company shall only Process Personal Information on behalf of and in accordance with its Privacy Policy, Customer’s documented instructions and applicable Data Protection Laws for the following purposes: (a) Processing in accordance with the Agreement; (b) Processing initiated by Customer’s Users or customers in their use of the Service; and (c) Processing to comply with other documented reasonable instructions provided by Customer where such instructions are consistent with the terms of the Agreement and applicable Data Protection Laws. Company shall ensure that its personnel engaged in the Processing of Personal Information: (x) are informed of the confidential nature of the Personal Information, (y) have received appropriate training on their responsibilities, and (z) are under contractual or statutory obligations to maintain the confidentiality of Customer Data. Company shall take commercially reasonable steps to ensure the reliability of any Company personnel engaged in the Processing of Personal Information.

6.6 Security Incident. If Company discovers, is notified of or suspects any (1) theft or unauthorized destruction, loss, alteration of or access to Customer Data or other Processing of Personal Information or; (2) a breach of security relating to Customer Data, (each a “Security Incident”) Company shall, within a reasonable time:

(a) notify the Customer representative at the address provided in the Agreement of such Security Incident by email or phone, but in no case later than 72 hours after Company has become aware of or suspects the Security Incident;
(b) with Customer’s consent, start an investigation of the Security Incident and take all appropriate actions to remediate the effects of the Security Incident and mitigate any risks that may arise from the Security Incident, and
(c) fully cooperate in good faith with the Customer team in any investigation that they may undertake in relation to the incident.
No independent action to correct a Security Incident shall be taken unless failure to immediately respond will result in irreparable harm to Customer.

6.7 California Consumer Privacy Act (CCPA). Company is a “Service Provider” as such term is defined under §1798.140(v) of the CCPA. As such Company

shall not retain, use or disclose any personal information (as defined in the CCPA) received from Customer during the term of this Agreement for any purpose other than the specific purpose of providing the products and services specified in this Agreement or for such other business purpose as is specified in this Agreement

7. Customer Responsibilities

7.1 Users. Customer is responsible for all activities that occur in User Accounts and for its and its Users’ compliance with this Agreement. Customer shall: (a) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Company promptly of any such unauthorized access or use; and (b) use the Service only in accordance with the Documentation and applicable laws and government regulations.

7.2 Use Guidelines. Customer shall use the Service solely for its internal business purposes as contemplated by this Agreement and shall not interfere with or disrupt the integrity or performance of the Service or the data contained therein.

7.3 Feedback. Customer may provide reasonable feedback to Company including, but not limited to, suitability, problem reports, suggestions and other information with respect to the Service (“Feedback”). Customer hereby grants to Company a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service, Documentation and any other Company products or services, or for any other purposes, any Feedback provided by Customer or its Users. From time to time, Cinareo may also request that Customer, on an optional basis, participate in a marketing case study and provide a testimonial as it pertains to their experience with Cinareo and use of the Service.

8. Fees and Payment

8.1 Fees. Customer shall pay all Fees specified in each Order Form. All Subscription Fees are quoted and payable in US dollars unless otherwise noted. Except as otherwise specified herein or in an Order Form, Subscription Fees are based on the Subscription-tier purchased, payment obligations are non-cancellable, Subscription Fees paid are non-refundable, and Customer cannot switch to a lower-tiered Subscription during the relevant Subscription Term stated in an Order Form; provided, however, that a Customer may switch to a higher-tiered Subscription and shall be charged a prorated amount for the first month of the new Subscription package.

8.2 Invoicing and Payment. Fees for Subscriptions will be invoiced in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, charges are due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Company.

8.3 Overdue Charges. Any payment not received from Customer by the due date may accrue (except with respect to charges then subject to a reasonable and good faith dispute), at Company’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (18% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.

8.4 Suspension for Non-Payment. Company may immediately suspend Customer’s Subscription to use the Service if Customer fails to make any payment due in respect of the Service and does not cure such non-payment within ten (10) business days after receiving notice of such failure. Any suspension of the rights hereunder by Company under the preceding sentence shall not excuse Customer from its obligation to make all payment(s) under the Agreement.

8.5 Payment Disputes. Company will not exercise its rights under Sections 7.3 or 7.4 hereof if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

8.6 Taxes. Subscription Fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, GST, sales, value-added, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Company has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Company will invoice Customer and Customer will pay that amount unless Customer provides Company with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Company is solely responsible for taxes assessable against it based on its income, property and employees.

9. Confidentiality Obligations

9.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (“Disclosing Party”) disclosed to the other party (“Receiving Party”), 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 the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Service and Documentation, Customer Data (which is the Confidential Information of the Customer), business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.

9.2 Confidentiality. Subject to Section 8.4, and unless the Disclosing Party expressly agrees in writing otherwise, the Receiving Party will: (a) use the Disclosing Party’s Confidential Information only during the Subscription Term and only as necessary to perform the Receiving Party’s obligations under this Agreement; (b) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s directors, officers, agents, employees and authorized subcontractors and their employees and only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement. Customer shall not disclose any performance, benchmarking, or feature-related information about the Service.

9.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).

9.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.

9.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.

9.6 Return of Confidential Information. Upon Disclosing Party’s written request upon expiration or termination of this Agreement (or at any earlier time upon written request by the Disclosing Party), the Receiving Party will: (a) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from any and all of the Receiving Party’s computer systems, retrieval systems and databases; and (b) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section 8.6.

10. Limited Warranties and Disclaimers

10.1 Limited Warranties. Company hereby represents and warrants to Customer that:

(a) During the Subscription Term the Service will perform materially in accordance with the Documentation;
(b) the Service will not contain any Malicious Code;
(c) it owns or otherwise has sufficient rights in the Service and Documentation to grant to Customer the rights to access and use the Service and Documentation granted herein.

10.2 Remedy. In the event of a breach of one or more of the warranties set forth in Section 9.1 hereof, Company shall use reasonable commercial efforts to correct such breach of the warranty. If Company is unable to remedy the breach of warranty within a reasonable time, Company shall provide Customer with a pro rata refund for Subscription Fees paid for those unused portions of the Service affected by any such breach.

10.3 Exclusive Remedies. THE WARRANTIES SET OUT IN SECTION 9.1 HEREOF ARE THE ONLY WARRANTIES PROVIDED BY COMPANY AND THE REMEDIES SET OUT IN SECTION 9.2 HEREOF ARE THE SOLE AND EXCLUSIVE REMEDIES OF CUSTOMER FOR A BREACH OF WARRANTY.

10.4 General Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, THE SERVICE AND THE PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, ENDORSEMENTS, UNDERTAKINGS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE SERVICE; AND/OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CUSTOMER DATA TRANSMITTED TO OR FROM COMPANY VIA THE SERVICE. COMPANY DOES NOT REPRESENT OR WARRANT THAT THE SERVICE WILL MEET ANY OR ALL OF CUSTOMER’S PARTICULAR REQUIREMENTS, THAT THE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL PROGRAMMING ERRORS IN THE SERVICE CAN BE FOUND IN ORDER TO BE CORRECTED. COMPANY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.

10.5 Internet Connectivity Disclaimer. Company makes the Service available for access via the Internet. Customer shall provide, at Customer’s own expense, all necessary hardware, applications and Internet connectivity necessary to access the Service over the Internet. Customer is responsible for and shall ensure that Customer’s computer equipment and an internet connection meets the minimum specifications published by Company in the Documentation and updated from time to time on the Company’s website, and Customer shall periodically update Customer’s computer equipment and/or Internet connection to meet such minimum specifications. Customer hereby acknowledges that the Service may be interrupted due to (a) website downtime for scheduled maintenance at Company’s sole discretion, or (b) interruptions in Internet connectivity or other website downtime caused by circumstances beyond Company’s control, including, without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer or telecommunications failures, or delays involving hardware of software not within Company’s control or network intrusions. Customer hereby acknowledges and agrees that Company shall not, in any way, be liable for, or have responsibility with respect to, any such service interruptions and releases Company from any claims relating thereto.

11. Indemnification by Customer

Customer shall defend, indemnify and hold Company harmless against any loss, damage or costs (including reasonable legal fees) incurred in connection with any claims, demands, suits, or proceedings made or brought against Company by a third party (a) alleging that the Customer Data or Customer’s use of the Service in violation of this Agreement, infringes the intellectual property rights of, or has otherwise harmed, a third party; (b) based on a breach of any Data Protection Laws or a breach of this Agreement; or (c) caused by any negligent act or omission of Customer or its employees, contractors or agents (each a “Customer Indemnified Claim”); provided, that Company (a) promptly gives written notice of the Customer Indemnified Claim to Customer; (b) gives Customer sole control of the defense and settlement of the Customer Indemnified Claim (provided that Customer may not settle or defend any Customer Indemnified Claim unless it unconditionally releases Company of all liability); and (c) provides to Customer, at Customer’s cost, all reasonable assistance and information.

12. Limitation of Liability

12.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).

12.2 Limitation of Liability. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY’S MAXIMUM, CUMULATIVE AND AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.

12.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS SUBJECT TO THE LIMITATION CONTAINED IN SECTION 11.2 HEREOF, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

13. Term

13.1 Term. This Agreement commences on the date of the initial Order Form and shall continue until terminated earlier in accordance with the provisions of this Agreement or applicable law. This Agreement shall remain in effect and govern all Order Forms until (i) the end of the Subscription Term under such Order Form, (ii) such Order Form is terminated by the parties, or (iii) there has been full performance of the parties’ respective obligations under such Order Form.

13.2 Subscriptions; Renewal. Subscriptions commence on the earlier of the start date specified in the relevant Order Form and continue for the Subscription Term specified therein unless terminated earlier as provide for in this Agreement. Unless otherwise agreed upon in the applicable Order Form, Subscriptions shall automatically renew for additional periods of one (1) year if Customer is already subscribed to a 1-year Subscription Term, unless Customer gives Company written notice of non-renewal at least sixty (60) days prior to the end of the applicable Subscription Term.

 

13.3 Audits. The Company reserves the right to perform an audit on the number of named or concurrent agents within the Customer's contact center at any time during the Subscription Period to ensure the number of agents matches the subscribed license amount. In the event that the number of agents exceeds the subscribed amount, the Company has the right to invoice the Customer for any incremental agents over and above the contracted commitment based on the Customer's existing contracted subscription rates.

13.4 Termination. A party may terminate this Agreement or a Service Subscription for cause (i) upon thirty (30) days’ written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

13.5 Refund or Payment upon Termination. If this Agreement or a Service Subscription is terminated by Customer in accordance with Section 12.3, Company will refund Customer any prepaid Subscription Fees covering the remainder of the term of the Subscription Term after the effective date of termination. If this Agreement is terminated by Company in accordance with Section 12.3, Customer will pay any unpaid Subscription Fees covering the remainder of the Subscription Term for any current Subscriptions. In no event will termination relieve Customer of its obligation to pay any Subscription Fees payable to Company for the period prior to the effective date of termination.

13.6 Suspension of Access to Service. In addition to any termination rights of Company pursuant to this Agreement, extraordinary circumstances may require Company to suspend or terminate (where appropriate), as determined in Company’s reasonable discretion, Customer’s access to and/or use of, or otherwise modify, the Service in order to: (a) prevent material damages to, or material degradation of the integrity of, Company’s or its provider’s Internet network; or (b) comply with any law, regulation, court order, or other governmental order. Company will notify Customer of such suspension or termination action as far in advance of such suspension or termination as reasonably possible, and if such advance notice is not possible, then as soon as possible after such suspension or termination. In the event of a suspension, Company will limit such suspension to that which is minimally required and will promptly restore Customer’s access to the Service as soon as the event giving rise to the suspension has been addressed (including by Customer agreeing to accept the risks associated with such suspension) or resolved. Unless caused by a breach of this Agreement by Customer: (i) all Subscription Fees related to the Subscription, or other suspended services shall be waived for the duration of the suspension and any such waived Subscription Fees which have been pre-paid shall be refunded to Customer; and (ii) in the event of a termination in connection with this Section 12.5, Customer shall receive a refund of any and all prepaid Subscription Fees applicable to the remainder of the then-current Subscription Term.

14. Assignment

Customer may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of Company. Notwithstanding the foregoing, Company may assign this Agreement in its entirety (including all Order Forms), without consent of the Customer, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any attempt by Customer to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

15. Notices

Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) electronic mail; (b) certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate party at the address set forth on the Order Form, with a copy, in the case of Company, to legal@cinareo.com. Each party hereto expressly consents to service of process by registered mail. Either party may change its address for receipt of notice by notice to the other party through a notice provided in accordance with this Section 14 (Notices). Notices are deemed given upon receipt if delivered via electronic mail, two (2) business days following the date of mailing, or one (1) business day following delivery to a courier.

16. General

16.1 Waiver. The failure of a party to claim a breach of any term of this Agreement shall not constitute a waiver of such breach or the right of such party to enforce any subsequent breach of such term. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right.

16.2 Unenforceable Provisions. If any provision of this Agreement is held to be unenforceable or illegal, such decision shall not affect the validity or enforceability of such provisions under other circumstances or the remaining provisions of this Agreement and this Agreement shall be reformed only to the extent necessary to make it enforceable under such circumstances.

16.3 Independent Contractors. The relationship of Company and Customer established by this Agreement is that of independent contractors, and nothing contained in this Agreement will be construed to (i) give either party the power to direct and control the day to-day activities of the other, (ii) constitute the parties as legal partners, joint venturers, co-owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of the parties are their sole respective responsibilities.

16.4 Governing Law. This Agreement shall be governed by the laws of the Province of Ontario, without regard to its conflict of law principles. The courts located in the Province of Ontario shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement and each party hereby consents to the exclusive jurisdiction of such courts. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.

16.5 Entire Agreement. This Agreement is the entire agreement between Customer and Company in respect to the subject matter hereof, superseding any other agreements or discussions, oral or written, and may not be changed except by a written license agreement with Company or a distributor of Company.

16.6 Remedies. 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.

16.7 Amendments. EXCEPT WHERE PROHIBITED BY APPLICABLE LAW OR AS OTHERWISE AGREED IN THE ORDER FORM, COMPANY MAY UNILATERALLY AMEND THESE TERMS OF SERVICE, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY COMPANY ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).

16.8 Language of Agreement. The parties hereto confirm that they have requested that this Agreement and all related documents be drafted in English. Any French translation hereof has been provided for information purposes only and does not have any legal value nor create any contractual relationship between the parties. Les parties aux présentes ont exigé que la présente entente et tous les documents connexes soient rédigés en anglais. Toute traduction de celle-ci est non-officielle, est fournie à des fins d’information seulement et ne crée aucun lien contractuel entre les parties.
 

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