Terms of Service
IMPORTANT: Carefully read these Terms of Service (this “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Customer”) and Silvacom Ltd. (“Silvacom”, and together with Customer, each a “Party” and collectively, the “Parties”).
BY USING THE SERVICE, CUSTOMER IRREVOCABLY ACCEPTS THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT, CUSTOMER MUST NOT USE THE SERVICE. Customer also agrees to ensure that anyone who uses the Service using its password or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICE.
By accepting this Agreement, Customer agrees to be bound by the terms and conditions of this Agreement, as it may be amended from time to time in the future.
When used in this Agreement, the following terms shall have the following meanings unless the context otherwise requires:
- “Affiliate” of a Party means any corporation or other legal entity that such Party directly or indirectly controls, is controlled by or is under common control with. In this context, a Party “controls” a corporation or other entity if it or any combination of it and/or its Affiliates owns more than fifty percent (50%) of the voting rights for the board of directors or other mechanism of control for such corporation or other entity;
- “Anonymized and Aggregated Data” means data, including Customer Data, which has been stripped of information potentially identifying Customer or which contains any Personal Information, and which has been manipulated and combined with other data to provide generalized anonymous information that cannot be used or reverse-engineered to identify Customer or any other person;
- “Confidential Information” means any and all information disclosed by either Party (“Disclosing Party”) to the other Party (“Receiving Party”) that is not public information and that is marked “confidential” or “proprietary” or which the Receiving Party knows or ought reasonably to know is regarded by the Disclosing Party as such, including oral information. All Customer Data is Customer’s Confidential Information. All Silvacom Property is Silvacom’s Confidential Information;
- “Custom Services” means any professional services to be provided by Silvacom described in an SOW, including implementation, customization, systems integration and API development services and other professional services made available by Silvacom;
- “Customer Data” means the data, information, records and files that Customer (or any User) loads, transmits to or enters into the Offering, including data that the Offering is configured to obtain from Customer’s services or systems;
- “Documentation” means the designated final user manuals, handbooks, online materials, specifications or forms furnished by Silvacom that describe the features, functionality or operation of the Offering;
- “Fees” has the meaning set forth in Section 5(a);
- “Intellectual Property” means (i) any rights provided under (1) patent law, (2) copyright law, (3) trademark law, (4) design patent or industrial design law or (5) any other statutory provision or common law principle applicable to the foregoing, including trade dress and trade secret law, which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how generally, or the expression or use of such ideas, formulae, algorithms, concepts, inventions or know-how; and (ii) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing;
- “Offering” means, collectively, the Service and the Platform;
- “Order Form” means, collectively, the online or written order documents representing the initial subscription to the Service and any subsequent modifications to the Service subscription Services agreed to between the Parties in writing from time to time;
- “Personal Information” means information about or relating to an identified or identifiable individual that is subject to any Privacy Laws;
- “Platform” means the technology, including websites, hardware, software and systems, used by Silvacom in the provision of the Service;
- “Privacy Laws” means all applicable 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;
- “Service” means the online Silvacom services delivered by Silvacom to Customer using the Platform, as made available by Silvacom from time-to-time and as specified in the Order Form;
- “Silvacom Property” means the Offering and all other Intellectual Property created, used or provided by Silvacom to Customer pursuant to this Agreement, and all modifications or derivatives thereof or improvements thereto;
- “SOW” has the meaning set forth in Section 2(b);
- “Subcontractors” has the meaning set forth in Section 2(i);
- “Subscription Fee” means the subscription fees to be paid by Customer to Silvacom for Customer’s use of the Service, as set forth in the Order Form;
- “Term” has the meaning set forth in Section 6(a); and
- “User” has the meaning set forth in Section 4(a).
2. Subscription for Service
- Service. Customer may order a subscription to the Service by placing orders on an Order Form. Conditional on Customer: (i) complying with the terms of this Agreement, including paying the Subscription Fee; (ii) cooperating with the reasonable requests of Silvacom; (iii) providing Silvacom 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 Platform to obtain data, Silvacom will provide the Service to Customer on the terms and conditions set out in this Agreement and each applicable Order Form.
- Custom Services. Customer’s subscription to the Services does not include any Custom Services. Customer may from time to time order Custom Services under this Agreement by entering into a written statement of work between the Parties (an “SOW”) setting out, amongst other things, description of Custom Services and the Fees, payment terms, performance standards and timeline for delivery applicable to the Custom Services. Upon execution by each Party, an SOW will be incorporated by reference into this Agreement. The terms and conditions of this Agreement will prevail over any provision in the SOW.
- Support Services and Availability. During the Term, Silvacom will provide the support services, and maintain the availability of the Offering, as described in Schedule A.
- Updates and Maintenance. Silvacom may update any aspect of the Offering at any time in its sole discretion, provided however that no such update will result in a material diminution of the functionality or operability of the Offering. Silvacom may schedule downtime for maintenance and upgrades to the Offering without prior notice but will use reasonable efforts to provide advance notice where practicable.
- Data Security. Silvacom will at all times during the Term adhere to the data security standards set forth in Schedule B (the “Data Security Schedule”). Customer acknowledges and agrees that Silvacom exercises no control over any content passing through the Internet or for Internet connectivity to the Offering. Customer acknowledges that the Internet is inherently risky, and that Silvacom only assumes responsibility for the security of Customer Data to the extent set forth in the Data Security Schedule.
- Limitation, Suspension or Termination of Access. In addition to the other rights and remedies of Silvacom under this Agreement, Silvacom may suspend, terminate or limit (in Silvacom’s sole discretion) Customer’s access to or use of the Offering, or any part of it, without notice in order to: (i) prevent damage to, or degradation of the integrity of, the Offering, Customer Data or Customer’s systems; (ii) restrict excessive usage of the Offering by Customer and its Users; (iii) comply with any law, regulation, court order or other governmental request or order applicable to Silvacom; or (iv) otherwise protect Silvacom from harm to its reputation or business. Silvacom 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, Silvacom will restore Customer’s access to the Offering when Silvacom determines the event has been resolved. Nothing in this Agreement will limit Silvacom’s right to take any action or invoke remedies, or will act as a waiver of Silvacom’s rights in any way with respect to any of the foregoing activities. Silvacom 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 Offering under this Section 2(g).
- Primary Contacts. Each Party will appoint one of its employees to serve as the primary business contact for such Party (each, a “Primary Contact”), and will provide written notice to the other Party of its Primary Contact’s name and contact information promptly following the Effective Date. Each Party will ensure that all instructions given by such Party in relation to the matters contemplated in this Agreement will be given by its Primary Contact to the other Party’s Primary Contact. A Party may change its Primary Contact at any time by providing written notice of such change to the other Party.
- Subcontractors. Customer acknowledges and agrees that Silvacom may retain the services of independent consultants (“Subcontractors”) from time to time to provide, or to assist Silvacom in providing, the Offering. Any Subcontractors used by Silvacom to provide the Offering shall remain under the direction and control of Silvacom, and Silvacom shall be fully and personally liable for all acts or omissions of the Subcontractors.
3. Intellectual Property
- Ownership of Customer Data. Silvacom expressly acknowledges and agrees that, as between Customer and Silvacom, Customer is the owner of and has exclusive rights, title and interest in and to Customer Data now and in the future on a worldwide basis, and that such information is further protected as Customer’s Confidential Information. Subject to the terms and conditions of this Agreement, Customer grants to Silvacom a non-exclusive, royalty-free, fully paid-up, worldwide license to copy, reproduce, modify, develop, access, collect, store and use the Customer Data: (i) during the Term, as necessary to provide the Offering to Customer; and (ii) on a perpetual basis, to generate Anonymized and Aggregated Data and use such Anonymized and Aggregated Data solely for the internal business purposes of developing and improving Silvacom’s existing and future products and services. Customer will ensure Silvacom’s use of any Customer Data in accordance with the terms of this Agreement will not violate the rights of any third party.
- Ownership of Custom Services Work Product. Unless otherwise agreed to between the Parties in an SOW, all right, title, and interest in and to the Custom Services and any work product and deliverables resulting from the Custom Services, including without limitation any intellectual property rights therein and thereto, shall, as between the Parties, be owned solely and exclusively by Silvacom.
- Freedom to Use Ideas. For clarity, the ideas, methods, concepts, know-how, structures, techniques, inventions, developments, processes, discoveries, improvements and other information and materials developed regarding the provision of the Offering or Silvacom’s Intellectual Property during the course of this Agreement by Silvacom and/or Silvacom personnel or Subcontractors may be used by Silvacom without limitation, including by or for its customers.
- Retention of Rights. Except as expressly set forth in this Agreement: (i) Silvacom retains all right, title, and interest in and to the Silvacom Property; and (ii) Customer acknowledges that nothing contained in this Agreement will constitute an assignment or transfer of the Silvacom Property to Customer.
4. Customer Responsibilities and Restrictions
- User ID. Upon Customer’s request, but subject to any limitations associated with Customer’s subscription account, Silvacom will issue a user identification and password (“User ID”) to Customer for each individual who is an authorized user that Customer authorized to use the Offering (each a “User”). Users may only access and use the Offering with their specific User ID. Customer is responsible to ensure User IDs are not shared between individuals, and that Users retain the confidentiality of their User ID. Customer is responsible for any and all activity occurring under the User IDs associated with Users. Customer will promptly notify Silvacom of any actual or suspected unauthorized use of the Offering. Silvacom may require that a User ID be replaced at any time.
- Customer Responsibilities and Restrictions. Customer agrees that Customer will not, and will not permit any person to:
- use the Offering other than as permitted by this Agreement;
- use the Offering in violation of any law, regulation or rule;
- copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, decompile, modify or adapt the Offering or any part thereof or otherwise attempt to discover any source code of the Offering;
- license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Offering available to any third party, other than to the Users, or any use otherwise than as expressly permitted under this Agreement;
- use the Offering to upload, collect, transmit, store, use or process, or ask Silvacom to obtain from third parties, any data: (A) that Customer does not have the lawful right to copy, transmit, distribute and display (including any Customer Data that would violate any confidentiality or fiduciary obligations that Customer might have with respect to the Customer Data); (B) for which Customer does not have the consent or permission from the owner of any Personal Information contained therein; (C) that infringes, misappropriates or otherwise violates any Intellectual Property or other proprietary rights of any third party; (D) that is tortious, defamatory, obscene or offensive; or (E) that violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil or criminal liability;
- use the Offering to send, store, publish, post, upload or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any systems, data, Personal Information or property of another;
- use the Offering in a manner that interferes with or disrupts the integrity or performance of the Offering;
- attempt to gain unauthorized access to the Offering or its related systems or networks;
- probe, scan or attempt to penetrate or ascertain the security of the Offering in any manner;
- use any data mining, robots or similar data gathering or extraction methods; or
- use or access the Offering for purposes of competitive analysis of the Offering, the development of a competing product or service or any other purpose that is to Silvacom’s commercial disadvantage.
- Customer Data. As between Silvacom and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability and appropriateness of the Customer Data.
5. Payment Terms
- Fees. Customer will pay to Silvacom the Subscription Fee and any fees for Custom Services as set forth in an SOW (collectively, the “Fees”) in accordance with the payment terms set forth in this Agreement.
- Invoicing. Unless otherwise agreed to by the Parties in the Order Form, the Subscription Fee will be billed in advance on an annual basis. Fees for Custom Services will be billed as set forth in the applicable SOW. Customer agrees to pay all invoices within 30 days of receipt. If Customer in good faith believes that Silvacom has billed Customer incorrectly, Customer must notify Silvacom in writing no later than 30 days after the date of the receipt of the invoice. The Parties shall cooperate in good faith to resolve any billing concern raised by Customer within 30 days after Customer notifies Silvacom. Silvacom reserves the right to charge interest at the rate of the lesser of (i) 2% monthly (24% annually), or (ii) the maximum amount allowed by law, in respect of invoiced amounts that have remained unpaid for more than 30 days from the date of receipt of such invoices except for unpaid disputed amounts.
- Taxes. The Fees are exclusive of any taxes, levies, duties or similar governmental assessments of any nature including value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer will be responsible for self-assessment of and self-remission of any and all Taxes associated with this Agreement to the applicable collecting agency or party. In the event that Silvacom pays Taxes on behalf of Customer, Customer will reimburse Silvacom for its payment of all Taxes, fees or assessments imposed by any governmental authority upon the services provided hereunder to Customer (excluding taxes based upon Silvacom’s income).
- Silvacom Warranties. Silvacom represents, warrants and covenants to Customer that:
- the Offering will perform materially as described in the technical specifications set forth in the Documentation and the sole remedy for such failure is for Silvacom to use reasonable efforts to cause the Offering to perform in accordance with their Documentation in accordance with Silvacom’s then-current standard support and maintenance policies; and
- it will perform the Custom Services in a diligent and businesslike manner using reasonable care and skill.
- Customer Warranties. Customer represents, warrants and covenants to Silvacom that Customer will comply with all Privacy Laws in its use of the Offering, including without limitation Customer’s provision, disclosure, use, retention and destruction of Personal Information.
- EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION 6: (I) THE OFFERING IS PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND; (II) EACH PARTY 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, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE; AND (III) SILVACOM DOES NOT WARRANT THAT THE OFFERING WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, AND SILVACOM EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE OFFERING IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
7. Term and Termination
- Term. The initial term of this Agreement and Customer’s subscription to the Service shall be as set forth in the Order Form (the “Initial Term”), and shall automatically renew for successive one year terms (each a “Renewal Term”), unless a Party gives written notice to the other Party at least 30 days before the expiration of the then-current Initial Term or Renewal Term advising that it wishes to terminate this Agreement and subscription to the Service at the end of such Initial Term or Renewal Term. In addition to any other terms of this Agreement which may modify the Subscription Fee payable hereunder, Silvacom may increase the Subscription Fee for Renewal Terms (1) by up to 5%, by providing Customer notice of such increase 30 days before the expiration of the then-current Initial Term or Renewal Term, or (2) any other amount, by providing Customer with notice of such increase at least 60 days before the expiration of the then-current Initial Term or Renewal Term.
- Termination. Without prejudice to any other rights or remedies which it may have, either Party may terminate this Agreement:
- if the other Party materially breaches this Agreement and such breach remains uncured 30 days after receiving written notice of such breach; or
- immediately by notice to the other Party if (1) the other Party is declared insolvent or bankrupt, (2) a petition is filed in any court to declare the other Party bankrupt or for a reorganization under bankruptcy law or similar statute and such petition is not dismissed in 60 days, or (3) a trustee in bankruptcy or a receiver or similar entity is appointed for the other Party.
- Termination of SOWs. Each SOW will immediately terminate upon the termination or expiry of this Agreement.
8. Effect of Termination
- Upon any termination or expiry of this Agreement, Customer will immediately cease any and all use of the Offering, all rights granted herein will revert to the granting Party and all licenses will terminate. This Section 8(a) is subject to any rights or obligations expressly surviving the termination or expiry of this Agreement.
- Sections 3, 5, 6 and 8 through 12 shall survive the termination or expiry of this Agreement.
9. Liability Limitations
- Limitations of Liability. IN NO EVENT WILL SILVACOM’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS IN AGGREGATE IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED THE TOTAL AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO SILVACOM 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 SILVACOM BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) 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 SILVACOM BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
- No Jury Trial. CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
- 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.
- Silvacom Indemnity. Silvacom will defend, indemnify and hold Customer harmless from and against all third party claims, suits, demands, or actions (“Claims”), and shall indemnify Customer against all costs, expenses and resulting damages awarded (including reasonable attorneys’ fees) to the extent arising from a claim that the Service, as provided, infringes any Intellectual Property of a third party in Canada or the United States. Notwithstanding the foregoing, Silvacom 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 Customer’s use of the Service (i) after it has been modified by Customer or a third party without Silvacom’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Silvacom. In the event that the Service are held to or believed by Silvacom to infringe, Silvacom will have the option to: (1) replace or modify the Service to be non-infringing, provided that such modification or replacement contains substantially similar features and functionality; (2) obtain for Customer the right to continue using the Service; or (3) if both (1) and (2) are not reasonably practicable, terminate this Agreement and refund to Customer the pro rata portion of the Subscription Fee paid to Silvacom for the Service not provided by Silvacom after the date of termination.
- Customer Indemnity. Customer will defend, indemnify and hold Silvacom harmless from and against all Claims, and shall indemnify Silvacom against all costs, expenses and resulting damages awarded (including reasonable attorneys’ fees) to the extent arising from: (i) Customer’s use of the Offering (including claims by any customer or business partner of Customer); (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) an allegation that the Customer Data, or the use of Customer Data by Silvacom pursuant to this Agreement, infringes any Intellectual Property or other rights of a third party, or otherwise causes harm to a third party.
- Conditions. Any Party that is seeking to be indemnified under the provision of this Section 10 (an “Indemnified Party”) must (i) promptly notify the other Party (the “Indemnifying Party”) of any Claim, and (ii) give the Indemnifying Party the 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 10 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 (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) 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 (C) 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.
- Obligation. The Receiving Party agrees (i) to hold the Disclosing Party’s Confidential Information in strict confidence, (ii) to limit access to the Disclosing Party’s Confidential Information to those of its employees, contractors or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (iii) not to use the Disclosing Party’s Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the Receiving Party will not be in violation of this Section 11(a) with regard to a disclosure that was in response to a valid court order, the advice of outside legal counsel that such disclosure must be made by it in order that it not commit a violation of law or requirement by a court or other governmental body, provided that the Receiving Party gives the Disclosing Party prior written notice of such disclosure in order to permit the Disclosing Party to seek confidential treatment of such Confidential Information.
- Exceptions. The restrictions on use and disclosure of Confidential Information set forth in Section 11(a) will not apply to any Confidential Information, or portion thereof, which (i) is or becomes a part of the public domain through no act or omission of the Receiving Party, (ii) was in the Receiving Party’s lawful possession prior to the disclosure, as shown by the Receiving Party’s competent written records, (iii) 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 (iv) is lawfully disclosed to the Receiving Party by a third party without restriction on disclosure.
- Deletion of Confidential Information. A Receiving Party will delete or destroy all Confidential Information of the Disclosing Party which it has in its custody or control within 30 days following the Receiving Party’s receipt of a written request from the Disclosing Party to do so. For clarity, the foregoing does not limit the right of either Party to retain such information as required by law or as permitted under this Agreement.
12. General Provisions
- Interpretation. In this Agreement: (i) words denoting the singular include the plural and vice versa and words denoting any gender include all genders; (ii) all usage of the word “including” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation,” throughout this Agreement; (iii) all dollar amounts are expressed in United States dollars unless expressly provided otherwise in the applicable SOW. Headings and the division of this Agreement into sections are for convenience of reference only and shall not affect the interpretation hereof.
- Injunctive Relief. Each Party acknowledges that irreparable harm may result if it breaches its obligations under Section 3 or 11. Each Party acknowledges that such a breach would not be properly compensable by an award of damages and that, in addition to any other available remedies, each Party shall be entitled to seek injunctive relief to prevent a threatened or actual breach of its Intellectual Property rights or the misuse, threatened misuse, disclosure or threatened disclosure of its Confidential Information.
- Arbitration. Subject to Section 12(b), any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved by arbitration pursuant to the Arbitration Act (Alberta) or the International Commercial Arbitration Act (Alberta), as applicable. The arbitration will be before a single arbitrator chosen by agreement of the Parties or, failing agreement, appointed pursuant to the Arbitration Act (Alberta) or the International Commercial Arbitration Act (Alberta), as applicable, on application by either Party. The fees and expenses of the arbitrator will be borne equally between the Parties. The arbitrator may order interest on any award and the arbitrator may award costs to either Party. In the absence of any such award of costs, each of the Parties will bear its own costs of the arbitration. The arbitration will take place in Edmonton, Alberta, unless the Parties agree otherwise.
- Governing Law. This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of Alberta 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.
- No Rights. Unless otherwise expressly provided for in this Agreement, no rights or licenses to any data, information, technology, trademarks or any other item containing the Intellectual Property of a Party or any third party are granted by virtue of this Agreement.
- Force Majeure. If the performance of any obligation hereunder, except non-payment of amounts due hereunder, is interfered with by reason of any circumstances beyond a Party’s reasonable control, including acts of God, labor strikes and other labor disturbances, power surges or failures, Internet connectivity, or the act or omission of any third party (each, a “Force Majeure Event”), the Party shall be excused from such performance to the extent necessary. Each Party will use reasonable efforts to implement industry standard procedures to minimize the disruption of such Force Majeure Events and shall use reasonable efforts to remove such causes of non-performance.
- Right to List as a Customer. Customer agrees that Silvacom may utilize Customer’s name, logos and/or trademarks in listings of current customers. Use of Customer’s name, logos and/or trademarks in any other marketing materials or press announcements will be submitted to Customer in advance for approval, provided that such approval will not be unreasonably withheld or delayed.
- Compliance with Export Regulations. Customer has or will obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals, and will indemnify and hold Silvacom harmless from, and bear all expense of, complying with all foreign and domestic laws, regulations or requirements pertaining to the importation, exportation or use of the technology to be developed or provided herein. Customer will not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.
- Entire Agreement. The terms and conditions of this Agreement supersede and replace all previous and contemporaneous agreements, proposals or representations related to the Offering.
- Assignment. Customer shall not be permitted to assign this Agreement without the consent of Silvacom, which consent shall not be unreasonably withheld, delayed or conditioned. Any assignment in violation of this Section 12(j) 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.
- Severability; Waiver. In the event that any provisions of this Agreement shall be found to be illegal, void or unenforceable, that provision will be enforced to the maximum extent permissible and the remainder of the Agreement shall 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.
- Relationship of Parties. The Parties are independent contractors. No agency, partnership, joint venture or employment relationship is created as a result of this Agreement, and each Party does not have any authority of any kind to bind the other in any respect whatsoever and neither Party shall make any contracts, warranties or representations or assume or create any other obligations, express or implied in the other Party’s name or on its behalf.
- No Third Party Beneficiaries; Enurement. There are no third party beneficiaries to this Agreement. This Agreement shall enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
- Notices. All notices, demands, consents, authorizations, approvals and other communications under this Agreement must be given in writing to the other Party at: (i) if to Customer, to Customer’s email or postal address set out in the Order Form; or (ii) if to Silvacom, to:
3912 – 91 Street NW
Canada T6E 5K7
Attention: Tim Onciul
Notices will be deemed to have been given upon receipt (or when delivery is refused) and may be (1) delivered personally, (2) sent via certified mail (return receipt requested); (3) sent via electronic mail (with confirmation of receipt), or (4) sent by recognized air courier service. A Party may change its address for notice under this Agreement by giving written notice to the other Party by the means set forth in this Section 12(n).
- Rights and Remedies. Except as specifically provided in this Agreement, the rights and remedies provided in this Agreement and all other rights and remedies available to either Party at law or in equity are, to the extent permitted by law, cumulative and not exclusive of any other right or remedy now or hereafter available at law or in equity, neither asserting a right nor employing a remedy shall preclude the concurrent assertion of any other right or employment of any other remedy.
- Further Assurances. Each Party will from time to time and at all times do such further acts and execute and deliver such further documents as may be reasonably required in order to evidence, carry out and give full effect to the terms, conditions, intent and meaning of this Agreement.
Schedule A- Support and SLA Schedule
In addition to the capitalized terms defined in the Agreement, the following terms have the following meanings in this Schedule:
- “Business Hours” means the hours from 8:00 a.m. to 4:30 p.m. Mountain Time, Monday through Friday, excluding statutory holidays observed in the Province of Alberta.
- “Excused Downtime” means any periods of unavailability of the Offering that it is attributable to: (i) Scheduled Downtime; (ii) breaches of this Agreement by Customer that adversely affect Silvacom’s ability to achieve Service Availability, (iii) circumstances caused by Customer, Customer’s personnel or third parties acting on behalf of Customer that adversely affect Customer’s ability to achieve Service Availability, including without limitation Customer’s failure to use the Offering in accordance with the Documentation or Silvacom’s recommended practices, (iv) Customer’s systems or environment, (v) the use of services, hardware or software not provided by Silvacom, (vi) denial of service attacks, (vii) actions taken by Silvacom in response to real or perceived threats to the security of the systems of Silvacom or Customer, (viii) a Force Majeure Event, or (ix) actions taken by Silvacom at the direction of Customer where Silvacom has notified Customer that the action could result in unavailability..
- “Service Availability” means the percentage of time during which the Offering is able to receive Customer Data, as measured by Silvacom in accordance with this Schedule.
- “Scheduled Downtime” means (i) any period of scheduled unavailability of the Offering related to network, hardware, software or service maintenance, upgrades or other technical work, and (ii) any period of emergency maintenance for critical patches, including security patches, with advance notice to Customer. Scheduled Downtime will not exceed 8 hours in any calendar week, without the prior consent of Customer. Scheduled Downtime is currently scheduled during a weekly maintenance window beginning on 6:00 pm Mountain Time on Thursdays each week and ending on 11:59 pm Mountain Time on Sundays (excluding emergency maintenance). The actual start time for Scheduled Downtime will be dependent on the length of the anticipated Scheduled Downtime required and Silvacom will use commercially reasonable efforts to schedule Scheduled Downtime to start at a time it determines to be least disruptive to most of its customers.
- “Unexcused Downtime” means the number of minutes within a calendar month during which the Offering is unavailable to receive Customer Data, excluding Excused Downtime, measured from the time the Offering becomes unavailable until the Offering ceases to be unavailable, as reasonably determined by Silvacom.
Silvacom will use commercially reasonable efforts to ensure the Offering achieves Service Availability greater than or equal to 99.5% on a monthly basis (the “Availability SLA”). Silvacom does not guarantee 24x7 uptime availability of the Offering.
Silvacom will measure and calculate Service Availability each calendar month, and will provide Customer with an online means to view Service Availability reporting.
Service Availability during each calendar month will be calculated by Silvacom using the following formula:
SA = [(M - D)/M] x 100
where “SA” means Service Availability, “M” means the number of minutes in the calendar month, and “D” means Unexcused Downtime.
Silvacom will provide the following standard support services to Customer:
- Web and Email Support. Customer will have access to Silvacom’s technical support portal on the Offering and may use the available interfaces, including any customer support email addresses posted thereon, to submit service requests.
- Incident Response Times. Silvacom will endeavour to respond to each reported incident in accordance with the following corrective services in accordance with the following priority:
One or more mission critical features of the Offering are unavailable or unusable, and the situation is considered an emergency, or the Offering as a whole is inoperable. A workaround is not immediately available.
2 Business Hours
One or more critical features of the Offering are significantly impaired, or the operation of the Offering is severely restricted. A workaround is not immediately available.
8 Business Hours
Specific non-critical functionality of the Offering is unavailable or unusable, or a critical feature of the offering is impaired but the impairment does not constitute a serious issue. A workaround is not immediately available.
5 Business Days
Non-critical functionality of the Offering is unavailable or unusable causing minor inconvenience.
15 Business Days
Silvacom’s determination of the Severity Level of a reported incident will be final and binding on the Parties.
c. Incident Management. Silvacom will use commercially reasonable efforts to correct any reproducible failure of the Offering to substantially conform to its expected operation, provided that Silvacom will not have an obligation to provide a correction for all such nonconformities.
Schedule B - Data Security
During the Term, Silvacom will maintain the following security measures for the Offering:
- General Security Requirement. Silvacom will implement appropriate technical and organizational measures to protect the Customer Data against unauthorized or unlawful processing, access or disclosure and against accidental loss, destruction, damage, alteration or disclosure. These measures shall include, without limitation, Silvacom implementing and maintaining a secure processing environment through the use of firewalls, virtual private networks (VPN) and other security technologies. Maintenance of a secure processing environment includes, but is not limited to, the timely application of anti-virus updates, system patches, fixes and updates to operating systems and applications. Silvacom may in its discretion modify or update such security measures from time to time, provided that such modification or update does not result in a material degradation in the protection offered by the security measures.
- Security Incidents. Silvacom will notify Customer, as soon as Silvacom becomes aware, whenever Silvacom learns of any accidental or unauthorized access, acquisition, use, modification, disclosure, loss, damage or destruction of Customer Data, or at such time as Silvacom reasonably believes that such unauthorized use has occurred (either such event shall be referred to as a “Security Incident”). Silvacom will: (a) promptly notify Customer of such Security Incident; (b) promptly, in consultation with Customer, start an investigation of the Security Incident and take all commercially reasonable actions to remediate the effects of the Security Incident and mitigate any risk that may arise from the Security Incident; (c) preserve all records and other evidence relating to the Security Incident; (d) provide Customer with a written report on the outcome of its investigation, including any risk to Customer Data, the corrective action Silvacom will take, or has taken, to respond to the Security Incident and such other information as Customer may reasonably request; and (e) provide Customer with assurance reasonably satisfactory to Customer that such Security Event will not recur. Customer may disclose the occurrence of a Security Incident in connection with notice to Customer’s customers, potential customers, employees or governmental authorities, provided however that such disclosure shall not identify Silvacom or Silvacom’s involvement in the Security Incident unless required by applicable law, or as otherwise necessary to comply with applicable laws. Silvacom will cooperate in good faith with Customer’s reasonable requests in respect of: (i) any notification to the individuals whose information has been breached in the Security Incident; (ii) credit monitoring services and identity theft insurance for such individuals; and (iii) disclosures to appropriate governmental authorities.
If you have any questions about these Terms, please contact us.
By email: email@example.com
By phone number: 7804623238