Please read the terms and conditions carefully. You may not use the Versaterm product and services unless you agree to the terms of the master software and services agreement.

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MASTER SOFTWARE AND SERVICES AGREEMENT

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This Master Services and Software Agreement (the “Agreement”) is entered into by and between the Applicable Versaterm Contracting Entity (“Versaterm”) and You (“Customer” or “you”) and is effective upon either (i) the signature of Quote, Service Schedule, or SOW, (ii) by accessing or using the Licensed Material; (iii) by clicking that you accept to be bound the terms of this Agreement or (iv) paying our invoice for Services.

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1. Definitions​

 

For the purposes of this Agreement these terms will have the following meanings:

 

1.1. “Annual Renewal Fees” means the recurring Subscription Fees, the Maintenance and Support Fees and all other annually recurring fees and charges charged by Versaterm for renewal subscription term under this Agreement, any Quote, any Service Schedule, any SOW, or any Versaterm order or purchase document.

 

1.2. “API” means an application programming interface.

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1.3. "Authorized User" means an employee, consultant, or contractor of Customer authorized by Customer to access and use the Services on Customer’s behalf.

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1.4. “CPI” means the consumer price index published by Statistic Canada on the 1st of the year.

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1.5. "Confidential Information" means this Agreement, any Quote, any Service Schedule, SOW, the Software, Customer Data and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, technology, products, sales information, trade services, know-how customer or supplier information, including information provided by such customers or suppliers, or any other information already furnished or to be furnished or made available by one Party to the other, whether in oral, written, graphic or electronic form including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Party's actual and potential customers and other Intellectual Property Rights of such Party, provided, however, that Confidential Information shall not include any data or information: (i) that, at the time of disclosure, is in or, after disclosure, becomes part of the public domain, through no act or failure on the part of the receiving Party, whether through breach of this Agreement or otherwise; (ii) that, prior to disclosure by the disclosing Party, was already in the possession of the receiving Party, as evidenced by written records kept by the receiving Party in the ordinary course of its business, or as evidenced by proof of actual prior use by the receiving Party; (iii) independently developed by the receiving Party, by Persons having no direct or indirect access to the disclosing Party's Confidential Information provided that the receiving Party provides clear and convincing evidence of such independent development; (iv) which, subsequent to disclosure, is obtained from a third Person: (A) who is lawfully in possession of the such information; (B) who is not in violation of any contractual, legal, or fiduciary obligation to either Party, as applicable, with respect to such information; and (C) on a non-confidential basis; or (v) is further disclosed with the prior written consent of the disclosing Party, but only to the extent of such consent.

 

1.6. "Customer Data" means collectively any data, files, documentation, or other information: (i) that Customer or any of its Authorized Users may upload to Versaterm Platform when using the Services; and (ii) processed through the use of the Services, excluding Third Party Data and any Versaterm Data.

 

1.7. "Customizations" means all Customer-requested modifications made to the Software or User Documentation by or for Versaterm in accordance with the terms of a Service Schedule or Work Order, which shall be at Customer's expense.

 

1.8. "Enhancements" means any changes or additions to the Software, that improve functions, add new functions, improve performance, or corrects errors by changes in system design or coding, including but not limited to changes or additions that are made to the Software to provide substantial additional value or utility.

 

1.9. "Fees" means the Subscription Fees, the License Fees, the Maintenance and Support Fees, the Customization Fees and all other fees and charges charged by Versaterm under this Agreement, any Quote, any Service Schedule, any SOW, or any other attachment.

 

1.10. “Go-Live Date” means the date on which the Software is available for production use, as may be further defined in a Quote, Service Schedule, or SOW.

 

1.11. "including" means "including without limitation" and is not to be construed to limit any general statement which it follows to the specific or similar items or matters immediately following it.

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1.12. "Intellectual Property" means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials or things.

 

1.13. "Intellectual Property Rights" means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principal applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.

 

1.14. “License Fees” means the fees charged by Versaterm in respect of the provision of Software to Customer on an on-premises basis, as further identified in a Service Schedule.

 

1.15. "Licensed Materials" means collectively the Versaterm Platform, Software, Maintenance and Support, and the User Documentation.

 

1.16. “Maintenance and Support” means the technical support services with respect to the specific Licensed Materials for which you have contracted with Versaterm, or as further described on a Quote, Service Schedule or as posted on Versaterm’s website.

 

1.17. "Maintenance and Support Fees" means the fees charged by Versaterm in respect of maintenance and support services as further identified in a Quote and Service Schedule or as identified on Versaterm’s website.

 

1.18. “Maintenance and Support Term” means with respect to the subscription period specified on the applicable Quote or Service Schedule or, if no explicit period is indicated in the applicable Quote or Service Schedule, a period of one (1) year starting from the 1st of the month following the Effective Date; together with, all renewals thereof effected in accordance with the terms of this Agreement.

 

1.19. "Network Aggregator Provider" means a third-party service provider that offers connectivity services to securely link separate networks.

 

1.20. “Open-Source Software Components” means software programs, libraries, or distributables (commonly known as “public”, “open source” or “free” software) made publicly available by the copyright holders.

 

1.21. "Party" means either Customer or Versaterm and "Parties" means both.

 

1.22. "Person" means any individual, company, corporation, partnership, government or government agency, authority, or entity howsoever designated or constituted.

 

1.23. "Point of Access" means Versaterm's, or its subcontractor's, border router, which is used to establish connectivity from the Versaterm Platform to Versaterm's, or its subcontractor's, internet provider, or the public internet.

 

1.24. “Professional Services” all professional services purchased by Customer in respect of the Subscription Services or use of Software (if installed on Customer’s premises), including implementation services, data migration, specialized support, training services and any other services as further described in a Service Schedule or Statement of Work.

 

1.25. “Quote” means a quote issued by Versaterm signed between the Customer and Versaterm identifying the Services, Fees, Professional Services or other products and services identified purchased or licensed by the Customer.

 

1.26. “Services” means the Subscription Service, Licensed Materials, Professional Services and Maintenance and Support as described in a Quote or Service Schedule.

 

1.27. "Service Schedule" means the applicable written document, signed by Customer and Versaterm, which incorporates by reference the terms and conditions of this Agreement, the terms and conditions of Subscription Service or the terms and conditions regarding use of the Software, any attached SOW, and any other relevant terms and conditions with respect to Customizations, Professional Services, implementation, or the provision of other technical services.   

 

1.28. "Software" means the computer programs owned by Versaterm and which are licensed to Customer, including: (a) all maintenance modifications (updates and upgrades); (b) Enhancements; (c) Customizations, now developed or to be developed by or for Versaterm during the Term; and (d) all formulas, routines, subroutines, algorithms, concepts, techniques, know-how and ideas implemented or embodied in any of the foregoing, in any form. For the avoidance of doubt, Software excludes Third Party Components.

 

1.29. “Statement of Work” or “SOW” means the applicable written document, signed by Customer and Versaterm or otherwise incorporated as part of a Quote or Service Schedule, under which Versaterm may provide Customer additional Professional Services related to the Software, including training, specialized support, and data migration, which shall be attached to the applicable Quote or Service Schedule.

 

1.30. "Subscription Fee" means the fees charged by Versaterm in respect of the Subscription Service as further identified in a Service Schedule.

 

1.31. "Subscription Service” means any combination of the following: (i) limited access and use rights to the Versaterm Platform on a hosted basis or use of Software if installed at Customer’s premises, (ii) hosting services, (iii) support services, and (iv) any other similar generally applicable services that Versaterm provides to its customers in accordance with the User Documentation. For the avoidance of doubt, Subscription Service does not include Professional Services.

 

1.32. “Subscription Term” means, with respect to any use of Software or access to Subscription Service, the subscription period specified on the applicable Quote or Service Schedule or, if no explicit period is indicated in the applicable Service Schedule, a period of one (1) year starting from the 1st of the month following the Effective Date; together with, all renewals thereof effected in accordance with the terms of this Agreement.

 

1.33. “Term” means the term set out in Section 17.1. of this Agreement.

 

1.34. “Third Party Data” means any data owned by a third party that the Customer accesses via the Software.

 

1.35. “Third-Party Component” means any components of the Subscription Services provided by third parties, including Open-Source Software Components and third-party proprietary software or services (e.g. Amazon Web Services (AWS)).

 

1.36. “Third-Party Supplier” means any party who provides products and/or services, including Open-Source Software and Third-Party Components that contribute to the overall Software provided to the Customer by Versaterm.

 

1.37. "User Documentation" means the user manuals, guides, and specifications with respect to the operation, use, functions, and performance of the Software, as revised from time to time, and any additional documentation for Customizations produced by Versaterm, in written or online electronic form.

 

1.38. “Versaterm Contracting Entity” means the Versaterm entity or affiliate that is counterparty to this Agreement with You and is set forth in Section 22.

 

1.39. "Versaterm Platform" means the Software, Versaterm Server and such devices and peripherals physically located with the Versaterm Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure located behind the Point of Access.

 

1.40. "Versaterm Server" means that computer server located at Versaterm's premises, or a third-party provider of hosting and/or network services, that houses the Software.

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2. License​​

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2.1. Provided that Customer is not in default of payment, for the duration of the applicable Subscription Term identified in a Quote or Service Schedule, Versaterm hereby grants to Customer a revocable, limited, non-exclusive, non-sublicensable, non-transferable, and royalty-free license to access and use of the Subscription Service or Licensed Materials identified in a Quote or Service Schedule for Customer’s operations.

 

3. Usage Restrictions and Requirements.

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3.1. Customer shall not (a) use, reproduce, display, perform or otherwise exploit the Software except as expressly authorized in this Agreement or in a Quote or Service Schedule, (b) copy any of the Software or User Documentation except as reasonably necessary to use the Software for its internal use as authorized herein or in a Quote or Service Schedule, and in all cases subject to the confidentiality provisions hereof, and provided that all copyright notices and any other proprietary notices are included, (c) assign this Agreement or transfer, lease, export or grant a sublicence of the Software or the license contained in this Agreement to any Person except as expressly authorized herein or in a Quote or Service Schedule, (d) decompile, disassemble, reverse engineer, or otherwise access or attempt to gain access to the Software’s source code (e) give any Person other than its employees, consultants, contractors and/or clients of Customer or other individuals listed pursuant to a Quote or Service Schedule access to the Software, (f) rent or lend, with or without charge, any system which includes the Software to any Person including clients and customers, (g) operate at any time on a regular or irregular basis an online or offline customer service bureau involving the Software, (h) permit (and Customer shall take all necessary precautions to prevent) third parties (including, any parties affiliated or related to Customer) to use the Software in any way that would constitute a breach of this Agreement, any Quote or any Service Schedule, (i) use any APIs, other than the APIs expressly authorized for use by Versaterm, with the Software or use any authorized APIs in a manner that is not permitted or published by Versaterm, (j) remove or modify any proprietary marking or restrictive legends placed on the Licensed Materials, (k) use any device, software, or routine to interfere with the proper working of the Software or to bypass any security features of the Software, (l) introduce into the Versaterm Platform any viruses, worms, defects, trojan horses, malware, or any items of a destructive nature.

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3.2. Customer shall be solely and exclusively responsible for the supervision, management, and control of Customer’s and each of its Authorized User’s use of the Licensed Materials and shall require each Authorized User to maintain all passwords and other access credentials with respect thereto.

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4. Customer’s Obligations

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4.1. Where the Software will require access and use of the Versaterm Platform, Versaterm shall operate and maintain the Versaterm Platform in accordance with the applicable Quote or Service Schedule. Access to the Versaterm Platform may be through a secure connection with the public internet or using a Network Aggregator Provider. Customer acknowledges and agrees that Versaterm is not responsible or liable for any communication over the public internet, or for the Network Aggregator Provider's network or its operation or the Network Aggregator Provider's network's failure to deliver communication to and from the Versaterm Platform on a timely basis.

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4.2. Customer shall be fully responsible for the acts and omissions of all Persons that are authorized or otherwise allowed, by Customer, to use or have access to the Software and User Documentation.

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4.3. Customer agrees to co-operate with and advise Versaterm of all information which would be reasonably required to permit Versaterm to deliver and, if applicable, install the Software. Customer shall respond promptly to any Versaterm request to provide information, approvals, authorizations, or decisions that are reasonably necessary for Versaterm to provide the Software.

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4.4. Subject to the terms and conditions of this Agreement, each Quote or Service Schedule, and if applicable, each SOW, Customer shall provide Versaterm with all reasonable access, which may include remote access, to Customer’s systems and premises for the purpose of Versaterm performing its obligations pursuant to this Agreement, and the failure of Customer to provide such access shall relieve Versaterm of its obligation to perform such obligations.

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4.5. Customer shall notify Versaterm immediately of any actual or suspected unauthorized use of its passwords or API keys for the Versaterm Platform.

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5. Ownership

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5.1. Customer acknowledges and agrees that all rights, title and interests in and to the Licensed Materials, including all Intellectual Property embodied therein, are and shall at all times remain the exclusive property of Versaterm and that, except as expressly set forth herein, no rights, title or interests, including any license, is granted to Customer hereunder by implication, estoppel, or otherwise of any kind whatsoever in or to the Licensed Materials or any portion thereof, except, in each case, for the rights and licenses expressly granted to Customer herein. Customer further acknowledges and agrees that all Third-Party Components are and shall at all times remain the property of the applicable Third-Party Suppliers.

 

5.2. Customer shall not remove any Versaterm trademark, service mark or logo, or any proprietary notices or labels (including any copyright or trademark notices) from the Service.

 

5.3. If Customer provides any feedback, comments, suggestions, ideas, descriptions of processes, or other information to Versaterm about or in connection with any Licensed Materials, including any ideas, concepts, know-how or techniques contained therein (collectively, “Feedback”), then Customer hereby grants Versaterm and its affiliates a worldwide, fully paid-up, royalty-free, non-exclusive, perpetual and irrevocable license to use, copy, modify and otherwise exploit the Feedback for any purpose, without any compensation to Customer or any restriction or obligation on account of Intellectual Property Rights or otherwise. Without limiting the generality of the foregoing, nothing in this Agreement limits Versaterm’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.

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6. Customer Data and Hosting Provider​​

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6.1. Customer hereby grants to Versaterm a limited, non-exclusive, non-transferable, royalty-free right to use, reproduce, manipulate, display, transmit and distribute the Customer Data solely in connection with providing the Licensed Materials to Customer, and improving and developing the Licensed Materials. In addition, Versaterm may analyze Customer Data, and data of other customers, to create aggregated and anonymized statistics or data that do not identify Customer or any individual, and Versaterm may during and after the Term use and disclose such statistics or data in its discretion. Except as specified otherwise in the Agreement, Customer shall be solely responsible for providing, updating, uploading, and maintaining all Customer Data.

 

6.2. Customer acknowledges and agrees that Versaterm: (i) will not be responsible for the accuracy, completeness or adequacy of any Customer Data or the results generated from any Customer Data uploaded to the Versaterm Platform and processed by the Software; (ii) has no control over any Customer Data or the results therefrom; (iii) does not purport to monitor Customer Data; and (iv) if Software is installed on Customer premises, shall not be responsible to back up or maintain any back up of the Customer Data or any portion thereof.

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6.3. Versaterm may change its third-party hosting provider (“Hosting Provider”) at any time. Customer’s use of the Licensed Materials is subject to any applicable restrictions imposed by the Hosting Provider. Notwithstanding any other provision of this Agreement, Versaterm shall not be liable for any problems, failures, defects, or errors with the Licensed Materials to the extent caused by the Hosting Provider. Customer acknowledges that the Fees payable for the Licensed Materials reflect the fact that Versaterm is not responsible for the acts and omissions of the Hosting Provider.

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6.4. Customer shall ensure that its employees, consultants, contractors, and agents comply with the terms and conditions of this Agreement, any Quote, any Service Schedule, or any SOW to the extent that such Persons are entitled or obligated under the terms hereof or thereof to exercise any rights or perform any obligations hereunder or thereunder. Customer shall be responsible for the actions of all such employees, consultants, contractors and agents.

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7. Fees and Payment Terms​

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7.1. Customer shall pay all the Fees as set out in the applicable Quote, Service Schedule, or SOW. All amounts invoiced and due in accordance with the payment terms of the applicable Quote, Service Schedule or SOW shall be paid by Customer within thirty (30) days of the date of an invoice for such amounts. Customer shall be invoiced for the Services identified in the Quote or Service Schedule on or around the commencement of the Subscription Term and on or around the yearly anniversary for the following years.

 

7.2. Any additional services, such as Professional Services or Customizations, requested by Customer shall be subject to additional Fees, unless otherwise agreed to in writing by the Parties.

 

7.3. All invoices under a Quote, Service Schedule or SOW will be in writing, reasonably substantiate the charges set out therein, and will be emailed to Customer at an email address specified in the applicable Quote or Service Schedule or may be submitted through an alternative electronic platform as agreed to between the Parties (e.g., Customer’s portal) as identified in the applicable Quote or Service Schedule.

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7.4. Unless prohibited by applicable law, where Customer fails to pay any amount in accordance with paragraph (a) above, Versaterm shall have the right, in addition to any other remedies, to charge, and Customer shall pay, interest on such overdue amounts at the rate of one and a half per cent (1.5%) per month (18% per annum), or, if less, the maximum rate of interest allowed by law.

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7.5. In all cases, all undisputed amounts due under this Agreement will be paid by Customer in full without any withholding, set-off, counterclaim or deduction.

 

7.6. If, acting in good faith, Customer disputes any item within an invoice, it shall raise such dispute by written notice to Versaterm prior to the date that payment on such invoice is due, and the Parties shall negotiate in good faith to attempt to resolve the dispute promptly. If the dispute is not resolved within thirty (30) days of the said notice being given, the dispute shall be resolved in accordance with Section 22. Any amounts not disputed in accordance with this section shall be deemed accepted and must be paid by Customer in accordance with this Section 7.

 

7.7. Versaterm reserves the right to increase the Fees on an annual basis by no more than CPI +4%. Notwithstanding the foregoing, Versaterm may increase fees beyond the cap of CPI+4% for Third Party Components.

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8. Taxes.

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8.1. In addition to all charges under a Quote or Service Schedule, Customer shall pay to Versaterm all taxes, duties, and other such assessments or charges which may be assessed, levied, or imposed with respect to any Software, services or products provided under a Quote or Service Schedule, except taxes based on Versaterm's income and capital. The foregoing provision includes sales, use, service, excise and personal property taxes, whether collected or withheld by Versaterm or otherwise assessed, and any penalty and interest payments related to the foregoing (which penalty and interest payments are not due to any fault on the part of Versaterm) but does not include taxes for which Customer is exempt by law and for which Customer has provided to Versaterm a bona fide tax exemption certificate prior to such tax becoming due.

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9. Confidentiality​

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9.1. Each Party acknowledges that all Confidential Information includes confidential and proprietary information. Except as required by law, each Party shall hold Confidential Information of the other Party in trust and confidence for and on behalf of such other Party and shall take commercially reasonable measures to maintain the confidentiality of the Confidential Information, which measures shall in any event be no less than what such Party would implement to protect its own Confidential Information of a similar nature or value. Each Party agrees not to make use of Confidential Information other than to the extent necessary for the exercise of rights or the performance of obligations under this Agreement, any Quote, or any Service Schedule, and not to release, disclose, communicate or otherwise make it available to any third-party other than officers, directors, employees, consultants and contractors of Versaterm or Customer, as applicable, who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement, any Quote, or any Service Schedule.

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9.2. Each Party agrees that any breach of this Section 9 ("Confidentiality") may give rise to irreparable damage to the other Party, the injury to the other Party from any such breach would be difficult to calculate, and that money damages would therefore be an inadequate remedy for such breach. Each Party agrees that the other Party will be entitled, in addition to all other remedies that the other Party may have under this Agreement, at law or in equity, and without showing or proving any actual damage sustained by it, to a permanent or temporary injunction or other order to restrain any breach, threatened breach or the continuation of any breach of this Section 9.

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9.3. Upon the termination or expiration of each Quote or Service Schedule, each Party will return to the other Party all Confidential Information with respect to such Quote or Service Schedule which is then in its possession or control. Upon the termination of this Agreement, each Party will return to the other Party all Confidential Information of such other Party which is then in its possession or control.

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9.4. Notwithstanding the above, Versaterm reserves the right to retain Customer Data that has been aggregated and anonymized, and Customer Data on audit logs and server system logs and in support tickets, support requests, and direct communications with Versaterm, saved as part of routine back-ups or as otherwise may be required by law. 

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9.5. If one Party becomes legally compelled to disclose any Confidential Information of the other Party (such as by a court order or similar legal instrument or proceeding), it shall provide the other Party with prompt notice thereof and shall not divulge any Confidential Information until the other Party has had the opportunity to seek a protective order or other remedy. If such actions are unsuccessful, or the other Party waives its rights to such remedies, then the compelled Party shall disclose only that portion of the Confidential Information necessary to comply with the applicable legal obligations.

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10. Representations and Warranties of Versaterm.

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10.1. Versaterm represents and warrants as follows: (a) Versaterm has the power and the capacity to enter into, and to perform its obligations under this Agreement. This Agreement and each of the agreements, contracts and instruments required by this Agreement to be delivered by Versaterm have been duly authorized by Versaterm. This Agreement has been duly executed and delivered by Versaterm and is a valid and binding obligation of Versaterm, enforceable in accordance with its terms, (b) neither the entering into of this Agreement, nor the performance by Versaterm of any of its obligations under this Agreement will contravene, breach, or result in any default under any organizational documents of Versaterm or under any agreement to which Versaterm is a party or by which Versaterm is otherwise bound and (c) Versaterm will use commercially reasonable efforts to ensure that all Software delivered to Customer is, at the time of shipment, free of any known computer software viruses.

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11. Representations and Warranties of Customer.

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11.1. Customer represents, warrants, and covenants, as follows: (a) Customer has the corporate power and the capacity to enter into, and to perform its obligations under this Agreement. This Agreement and each of the agreements, contracts and instruments required by this Agreement to be delivered by Customer have been duly authorized by Customer and (b) This Agreement has been duly executed and delivered by the Customer and is a valid and binding obligation of the Customer, enforceable in accordance with its terms; and neither the entering into of this Agreement, nor the performance by Customer of any of its obligations under this Agreement will contravene, breach, or result in a default under the articles, by-laws, constating documents or other organizational documents of Customer or under an agreement to which the Customer is a party or by which Customer is otherwise bound.

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12. Versaterm’s Indemnity

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12.1. Versaterm will defend at its own expense any claim, proceeding or suit (for purposes of this Section 12, a "Claim") brought against Customer to the extent such Claim alleges that any Licensed Materials provided under a Quote or Service Schedule infringes a proprietary right of a third-party which is enforceable within Canada or the United States, and will indemnify and pay all damages finally awarded against Customer by courts of competent jurisdiction on account of such infringement together with all reasonable costs and expenses (including reasonable legal fees as determined by courts of competent jurisdiction) incurred by Customer as a direct result of such Claim, provided Versaterm is given: (i) prompt written notice, however, no later than ten (10) days, of the Claim; (ii) all reasonable information and assistance which it may require to defend the Claim; (iii) sole control of the defense of the Claim, and all negotiations for its settlement or compromise; and provided further: (iv) that the alleged infringement does not result from any alterations, modifications or enhancements to the Software or Documentation made by Customer or on its behalf by a third-party, or the use or operation of the Licensed Materials in combination with other software, products, data, apparatus or equipment not provided by Versaterm.

 

12.2. Notwithstanding anything to the contrary in this Agreement or any Quote or any Service Schedule, Versaterm shall not be responsible for any cost, expense or compromise incurred or made by Customer in respect of a Claim without Versaterm's express prior written consent.

 

12.3. If any Claim has occurred, or in Versaterm’s opinion is likely to occur, Versaterm may, at its option and expense: (a) procure for Customer the right to continue using the applicable Licensed Materials, (b) replace or modify the same so that it becomes non-infringing without loss of material functionality; or (c) if none of the foregoing alternatives is reasonably available, or available on commercially reasonable terms, at Versaterm’s discretion, discontinue the Service and use of the Software and refund to Customer any pre-paid and unused portion of the Fees paid by Customer in respect of use of the Software for the remainder of the then-current portion of the Subscription Term or License Term.

 

12.4. Notwithstanding the above, Versaterm shall have no obligation for any Claim based upon Third Party Components, which are warranted solely by the individual Third-Party Supplier.

 

12.5. This Section 12 states the entire obligations of Versaterm with respect to any infringement of any Intellectual Property Rights of any third party.

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13. Customer's Indemnity

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13.1. Unless prohibited by applicable law, Customer shall defend at its own expense any Claim brought against Versaterm, its affiliates or any of their respective directors, officers, employees, consultants, contractors or agents (each, a “Versaterm Indemnitee”), to the extent such Claim: (i) alleges, directly or indirectly, that any Customer Data infringes any Canadian or U.S. Intellectual Property Right of a third person; or (ii) is in relation to Customer's use of the Software, including contrary to applicable law, except however to the extent Versaterm is obligated to indemnify Customer pursuant to Section 13; provided that Customer is given: (a) prompt written notice of the Claim or of any allegations or circumstances known to Versaterm which could result in a Claim, (b) all reasonable information and assistance from Versaterm, at Customer's expense, which Customer may require to defend the Claim; and (c) sole control of the defense of the Claim, and all negotiations for its settlement or compromise thereof; provided that Versaterm’s express prior written consent shall be required for any such settlement or compromise that (i) does not fully and irrevocably release all Versaterm Indemnitees from any liability of any kind a full release with respect thereto, (ii) limits in any manner Versaterm’s right to use, distribute or commercialize any Licensed Materials, or (iii) that includes any admission of wrongdoing by or creates or is reasonably likely to create any reputational harm to any Versaterm Indemnitee.

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14. Exclusion of Other Warranties and Conditions

 

14.1. EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, ANY QUOTE OR SERVICE SCHEDULE, OR ANY SOW, THE LICENSED MATERIALS, THIRD PARTY COMPONENTS OR ANY SERVICES PROVIDED HEREUNDER, ANY QUOTE, ANY SERVICE SCHEDULE OR ANY SOW ARE PROVIDED ON AN "AS IS", “WHERE-IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTY OF ANY KIND. THE REPRESENTATIONS AND WARRANTIES GIVEN BY VERSATERM IN SECTION 11 ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, WHETHER EXPRESS OR IMPLIED, IN RELATION TO ANY LICENSED MATERIALS, THIRD PARTY COMPONENTS OR SERVICES PROVIDED UNDER THIS AGREEMENT, ANY QUOTE, ANY SERVICE SCHEDULE OR ANY SOW, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE OR NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. VERSATERM HEREBY DISCLAIMS ALL LIABILITY AND RESPONSIBILITY FOR ANY THIRD-PARTY COMPONENTS OR THE ACTS OR OMISSIONS (INCLUDING WITH RESPECT TO THE PROVISION OF ANY SERVICES) OF ANY THIRD-PARTY SUPPLIER.

 

14.2. CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT THE USE AND OPERATION OF ANY SOFTWARE OR THIRD-PARTY COMPONENTS, AND THE RESULTS OBTAINED FROM SUCH USE AND OPERATION, ARE AT THE SOLE AND EXCLUSIVE RISK OF CUSTOMER AND THAT VERSATERM ASSUMES NO LIABILITY OR RESPONSIBILITY WITH RESPECT TO ANY RELIANCE UPON THE RESULTS OBTAINED BY CUSTOMER OR ANY THIRD-PARTY.

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15. Exclusion of Indirect Damages.

 

15.1. UNDER NO CIRCUMSTANCES WILL VERSATERM BE LIABLE FOR ANY OF THE FOLLOWING UNDER THIS AGREEMENT FOR ANY REASON: (A) SPECIAL, INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE OR EXEMPLARY DAMAGES OF ANY KIND, INCLUDING WITH RESPECT TO LOSS OF PROFITS, REVENUES, CUSTOMERS OR CONTRACTS, LOSS OF USE OF EQUIPMENT, LOSS OF OR DAMAGE TO DATA OR CUSTOMER RECORDS, REPUTATIONAL HARM, OPERATIONAL OR SERVICE INTERRUPTIONS, BUSINESS INTERRUPTION, OR LACK OF AVAILABILITY OF CUSTOMER MATERIALS OR FACILITIES, INCLUDING CUSTOMER'S COMPUTER RESOURCES, SOFTWARE AND ANY STORED DATA (INCLUDING CUSTOMER DATA) OR RECORDS; OR (B) ANY THIRD-PARTY CLAIMS AGAINST CUSTOMER FOR LOSSES OR DAMAGES (EXCEPT AS EXPRESSLY PROVIDED IN SECTION 13), IN EACH CASE, EVEN IF ADVISED OF THE POSSIBILITY OF SAME OR EVEN IF SAME WERE REASONABLY FORESEEABLE.

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16. Limitation of Direct Damages.

 

16.1. THE TOTAL AGGREGATE LIABILITY OF VERSATERM UNDER THIS AGREEMENT IS LIMITED TO THE AMOUNT CUSTOMER PAID VERSATERM FOR THE SERVICES PURSUANT TO WHICH SUCH LIABILITY AROSE OR IS ASSOCIATED DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM GIVING RISE TO THE LIABILITY AROSE. NOTWITHSTANDING THE FOREGOING, THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY TO DAMAGES ARISING FROM VERSATERM’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.

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17. Term.

 

17.1. This Agreement shall commence upon the Effective Date and continues until the Subscription Term (s), Maintenance and Support Term(s) for the Services purchased hereunder have expired or have been terminated.

 

17.2. Upon expiration of a Subscription Term or Maintenance and Support Term, unless otherwise specified in the applicable Quote or Service Schedule, all rights to access and use or the license to use Licensed Materials, as applicable, granted under such Quote or Service Schedule and this Agreement shall automatically be renewed for additional one (1) year periods, and Versaterm will invoice Customer at the then-current subscription-based price, subject to the cap set forth in Section 7.7. (or such other rates mutually agreed by the Parties) unless a Party provides written notice to the other Party to terminate at least sixty (60) days prior to the expiration of the Subscription Term or any renewal term.

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18. Termination.

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18.1. In addition to any other rights or remedies hereunder:

 

18.1.1. Versaterm reserves the right to terminate this Agreement or parts of this Agreement for convenience by providing thirty (30) days written notice to the Customer;

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18.1.2. Versaterm may terminate this Agreement at any time on giving Customer notice in writing if: (i) Customer infringes any copyright or other Intellectual Property Right or other industrial or proprietary right of Versaterm; (ii) in Versaterm’s reasonable judgment, Customer’s use of the Software poses a security risk to the Software or any third party; (iii) Customer fails to pay in full any sum owed by it under this Agreement, Service Schedule or Quote within thirty (30) days of the due date therefor; or (iv) Customer fails to observe or perform any other material obligation or covenant required to be observed or performed by it under this Agreement, Quote or Service Schedule, and solely in the case of (iv) above, such failure continues for a period of thirty (30) days after delivery of written notice by Versaterm to Customer requiring Customer to cure such failure.

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18.2. In the event Customer becomes unable to pay future amounts due under any Quote or any Service Schedule or any SOW due to a material reduction in or cancellation of public funding, Customer may terminate the applicable Quote, Service Schedule, or SOW upon thirty (30) days’ written notice to Versaterm, and Versaterm shall be entitled to retain any advance payments made by Customer to Versaterm.

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18.3. Subject to applicable law, Customer may terminate this Agreement immediately upon giving written notice to Versaterm if Versaterm: (i) makes any general assignment for the benefit of creditors or otherwise enters into any composition or arrangement with its creditors; (ii) is unable to pay its debts as they mature; (iii) has a receiver and/or manager appointed over its assets or an application is made to do so; (iv) becomes bankrupt or insolvent or commits an act of bankruptcy or (v) Versaterm fails to observe or perform any other material obligation or covenant required to be observed or performed by it under this Agreement or Service Schedule, and solely in the case of (v) above, such failure continues for a period of thirty (30) days after delivery of written notice by Versaterm to Customer requiring Customer to cure such failure.

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19. Orderly Termination

 

19.1. Upon termination of a Quote. Service Schedule or upon expiration of the License Term for Software which is not renewed in accordance with the Service Schedule, Customer shall: (a) immediately discontinue use of the Licensed Materials; (b) ensure that all Persons using the Licensed Materials pursuant to this Agreement cease all use thereof; (c) promptly (and in any event within five (5) days) return to Versaterm all copies of the Licensed Materials in its (or any Authorized Users’ or other Persons’ to whom it provided access to any Licensed Materials) possession or control; (d) permanently erase all Licensed Materials, in whole or in part, from all computer systems, storage devices and other electronic recording systems in Customer’s possession or control and cause each Authorized User and each other Person to whom it provided access to any Licensed Materials to do the same; deliver within thirty (30) calendar days of such termination or expiration a certificate certifying that Customer and all such Persons to whom Customer has provided access to any Licensed Materials have complied with the terms of this Section 19, as applicable; and (e) pay Versaterm the full amount of any charges outstanding, including for any Professional Services performed, as of the date of termination, if any, whether invoiced or not (including any amounts due as late payment charges), and all other monies owing to Versaterm

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20. Suspension

 

20.1. If Customer has materially violated the Agreement or any Quote, Service Schedule, including failure to pay any Fees or any portion thereof when due (other than invoiced amounts disputed in good faith pursuant to Section 8(f)), Versaterm may immediately suspend Customer's and each of its Authorized Users' right to access or use any Licensed Materials (including access to the Versaterm Platform) or receive any Services.

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21. Notices.

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21.1. The address for notices to Customer shall be address indicated in the Quote or Service Schedule. The address for notices to Versaterm shall be in accordance with the applicable Versaterm Contracting Entity set forth in Section 22.

 

21.2. Unless otherwise specified in this Agreement, all notices, requests, demands and other communications under this Agreement shall be in writing and shall only be duly given: (a) on the date of sending if sent by email, or (b) on the third business day after posting if sent, during normal postal conditions, by registered or certified mail.

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22. Miscellaneous.

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22.1. Any waiver of, or consent to depart from, the requirements of any provision of this Agreement, or a Quote, or a Service Schedule or SOW shall be effective only if it is in writing and signed by the Party giving it, and only in the specific instance and for the specific purpose for which it has been given. No failure on the part of any Party to exercise, and no delay in exercising, any right under this Agreement shall operate as a waiver of such right. No single or partial exercise of any such right shall preclude any other or further exercise of such right or the exercise of any other right. No amendment or variation to this Agreement shall be effective unless signed in writing by both Parties.

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22.2. This Agreement is between separate legal entities and neither Party is the agent, employee, or partner of the other for any purpose whatsoever. The Parties do not intend to create a partnership or joint venture between themselves. Neither Party shall have the right to bind the other to any Service Schedule with a third-party or to incur any obligation or liability on behalf of the other Party.

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22.3. Customer may not assign any rights or benefits under this Agreement (including any Service Schedules or SOWs), in whole or in part, to any Person without the express prior written consent of Versaterm. Versaterm may assign its rights and benefits under this this Agreement (including any Quotes, Service Schedules, or SOWs) to any Person by providing written notice to the Customer and may contract with any other Person to perform its obligations under this Agreement (including any Service Schedules or SOWs) without obtaining Customer's consent to any such contract. Notwithstanding the foregoing, Versaterm may assign its rights and benefits under this Agreement (including any Quotes, Service Schedules, or SOWs) to any Person without providing written notice to the Customer if such assignment is due to a corporate restructure, merger, or acquisition.

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22.4. Except as expressly provided otherwise in a Quote, Service Schedule or SOW dates and times by which Versaterm or Customer is required to render performance (other than dates and times for payment of money) under a, Quote, Service Schedule or SOW shall be postponed automatically to the extent and for the period of time that Versaterm or Customer, as the case may be, is prevented from meeting them by reason of any causes beyond its reasonable control, provided the Party prevented from rendering performance notifies the other Party promptly and in detail of the commencement and nature of such a cause, and provided further that such Party uses its commercially reasonable efforts to render performance in a timely manner utilizing to such end all resources reasonably required in the circumstances, including obtaining supplies or services from other sources if same are reasonably available.

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22.5. If any provision of this Agreement or any Quote, Service Schedule or SOW is determined to be invalid or unenforceable by a court of competent jurisdiction from which no further appeal lies or is taken, that provision shall be deemed to be severed here from, and the remaining provisions of this Agreement, Service Schedule or SOW shall not be affected thereby and shall remain valid and enforceable.

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22.6. All obligations accrued to the date of termination as well as the Sections of this Agreement listed below shall survive the termination of this Agreement made pursuant to this Agreement for as long as necessary to permit their full discharge: 1, 3, 4.2, 7-9, 12-16, 19, and 21-22.

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22.7. Section headings used in this Agreement are for convenience of reference only and shall not be construed as defining, limiting, or describing the scope or intent of this Agreement.

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22.8. Unless otherwise specified in a Quote or Service Schedule, all references to monetary amounts, including the symbol "$", are in respect of United States Dollars.

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22.9. This Agreement and any Quote, Service Schedule or SOW made pursuant to this Agreement shall be binding upon and inure to the benefit of the Parties and their respective successors and permitted assigns.

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22.10. Prior to the commencement of any legal proceeding under this Agreement all claims must be raised for good faith discussion between authorized representatives of both Parties with authority to resolve the dispute. Should the claims not be resolved within thirty (30) days of the date of the first request such discussion, each Party shall be free to pursue its legal remedies pursuant to the terms of this Agreement.

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22.11. None of this Agreement, any Quote, any Service Schedule, or any SOW shall be changed or amended except in writing by an amendment executed by authorized representatives of each Party.

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22.12. The laws of the State of Delaware shall be applicable to the interpretation of this Agreement without regard to the conflicts of law principles thereof. The Uniform Computer Information Transactions Act and the United Nations Convention on Contracts for the International Sale of Goods shall not apply.

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22.13. This Agreement, along with the Quotes, Service Schedules and SOWs agreed to by the Customer in accordance with this Agreement or signed by the Customer, constitute the entire agreement between Versaterm and Customer regarding Customer’s use of the Services. All prior agreements, negotiations, undertakings, and discussions, whether oral or written, are superseded by this Agreement and there are no warranties, representations, or covenants between the Parties in connection with this Agreement, except as specifically set forth or referred to in this Agreement.

 

22.14. The Parties agrees that in the event of a conflict or inconsistency between the terms of this Agreement and or other documents, the order of precedence shall be the following: (1) Quote or Service Schedule, (2) this Agreement, and (3) SOW.

 

22.15. The Parties agree that any terms or conditions set forth in a purchase order, acknowledgement or any other document or response issued by Customer shall not apply to this Agreement or any Quote, Service Schedule or SOW shall be deemed automatically rejected by Versaterm without need of any further or additional notice of rejection and void and of no effect.

 

22.16. Versaterm may reference the existence of this Agreement and the business relationship between the Parties for the purposes of: (a) issuing press releases to announce the beginning or continuation, as applicable, of the business relationship between the Parties; or (b) referencing Customer as a customer of Versaterm including in Versaterm’s customer list and other marketing materials.

 

22.17. In the event of a Force Majeure Event, nonperformance or delay shall not be deemed to be a default hereunder. The Party declaring a Force Majeure Event shall continue to meet its security and confidentiality obligations and shall make all reasonable efforts to continue to meet all its obligations throughout the duration of the Force Majeure Event. The Party declaring a Force Majeure Event shall notify the other Party promptly when the Force Majeure Event begins. This provision shall not limit the Parties’ rights under any similarly applicable state law.

 

22.18. Customer acknowledges that the Services have specific service level agreements, customer support and other specific terms associated with the applicable Services which shall be referred either in the Quote or as posted on Versaterm’s website at www. https://www.versaterm.com/legal.

 

22.19. The Versaterm Contracting Entity applicable to this Agreement with You depends on your domicile location. The following sets forth your applicable Versaterm Contracting Entity.