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THIS AGREEMENT is made as of (but if no specific date is inserted, the date of this Agreement shall be the date of the execution and delivery of the Schedule A between the parties therein that references its attachment as Schedule A to the Customer Agreement found at http://www.schoolbundle.ca/062017-agreement/customer-agreement.html
BETWEEN:
(but if no specific name is inserted, the Customer Name shall be the party named as the Customer in the said Schedule A between the parties therein that references its attachment as Schedule A to the Customer Agreement found at http://www.schoolbundle.ca/062017-agreement/customer-agreement.html (the "Customer")
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CONCEPT INTERACTIVE INC.,
a corporation incorporated pursuant to the laws of the Province of Ontario, Canada ("Concept")
A. WHEREAS the Customer wishes to retain Concept to carry out certain work and services and to license to the Customer certain proprietary software programs, programming materials and other items included in the Concept Suite Solution, all as described in and subject to the terms below and the Privacy Policy and Terms of Service as the same may be amended from time to time as referenced in the said Schedule A;
NOW THEREFORE THIS AGREEMENT WITNESSETH THAT in consideration of the premises and the mutual covenants herein contained, and for other good and valuable consideration, the receipt and sufficiency of which is hereby irrevocably acknowledged, the parties agree as follows:
In this Agreement, and in each of the other Project Documents unless otherwise defined therein, the following words have the following meanings:
1.1 “Business Day” means any day that is not a Saturday, Sunday, or statutory holiday in the Province of Ontario.
1.2 “Concept Indemnitees” has the meaning ascribed in Section 9.1.1.
1.3 “Confidential Information” means and includes information, technology or services disclosed or made available by a disclosing party or otherwise obtained or received by the other receiving party, whether under this Agreement, any other Project Document, or otherwise, that the receiving party should reasonably understand to be confidential, including without limitation: (i) unpublished or otherwise not publicly available or accessible financial information, prices and other terms of use or service, audit and security reports, product development plans, portal and website and data center designs, server configuration designs, services, and other proprietary information or technology, (ii) non-public or private information of or regarding the disclosing party’s directors, officers, trustees, employees, staff, personnel, teachers, instructors, students and their parents, agents, contractors, customers and end users, and (iii) information that is marked or otherwise designated as confidential.
1.4 “Content“ means and includes any software, online service, feature or technology, data or database or other content (including Personal Identifiable Information) that the Customer or the Customer’s Service Users may (i) upload to the Services, and/or (ii) create and/or modify using the Services, and/or (iii) otherwise provide to or make available or that may become available to Concept pursuant to this Agreement or any other Project Document..
1.5 "Event of Force Majeure" means and includes any event beyond the reasonable control of a party that causes such party to fail to carry out or delay in carrying out any of its obligations in this Agreement or in any other Project Document, and includes, without limitation, acts of God, war, riot, insurrection, terrorism (including cyber terrorism), acts of civil or military authority, acts or omissions of regulatory or governmental authority, earthquakes, floods, fire, other natural disasters, explosions, epidemics, labour stoppages or strikes, embargoes, power failures, Internet outages or failures, acts or omissions of Internet traffic carriers, or other events of a magnitude for which precautions are not generally taken in the industry, but shall not apply to the Customer’s payment obligations.
1.6 "Fee” or "Fees" means and includes the fees and all other amounts payable to Concept by the Customer, including all applicable Taxes, in accordance with the provisions of this Agreement and under each of the other Project Documents.
1.7 “License Fee” has the meaning ascribed in the said Schedule A.
1.8 “License Term” has the meaning ascribed in the said Schedule A.
1.9 “Losses“ has the meaning ascribed in Section 9.1.2.
1.10 “Personal Identifiable Information” or “PII” means and includes any information or data, either alone or in combination with other information or data, that can be used to identify or locate a natural person.
1.11 “Privacy Policy” means Concept’s Privacy Policy as amended from time to time, as the same is referenced in the said Schedule A.
1.12 “Project Documents” means and includes this Agreement, the said Schedule A, the Privacy Policy, the Terms of Service, and as applicable and as executed or deemed to have been executed by the parties from time to time, any Professional Services Agreement, premier Support Services Agreement and any other agreements as in the future may be added to the Concept Suite Solution and be executed or deemed to have been executed by the parties.
1.13 "Services" means and includes any and all access, products, services, websites, platforms, portals, communication services, mobile services, databases, documentation, and software (including the Software), present or future, associated with the Concept Suite Solution and any associated access, products, services, websites, platforms, portals, communication services and mobile services and any other source or object code or capability provided by Concept described in or provided to the Customer under this Agreement or any other Project Document.
1.14 “Service Users” means and includes the Customer’s directors, officers, trustees, employees, staff, personnel, teachers, instructors, students and their parents, agents, contractors, customers and end users, whether authorized or unauthorized by the Customer, that access the Concept Suite Solution, including the Software and Services, through or by the Customer’s portal or portals or otherwise.
1.15 "Software" means those portions of the suite of software for the Concept Suite Solution and related products as specifically listed in the said Schedule A attached to and forming part of this Agreement, or as the said Schedule A may be amended by agreement of the parties from time to time, either for on-premise, off-premise, or hybrid combination scenarios, and all related products.
1.16 “Taxes” has the meaning ascribed in Section 3.3.
1.17 “Terms of Service” means Concept’s Terms of Service as amended from time to time, as the same is referenced in the said Schedule A.
1.18 “Third Party Claim” has the meaning ascribed in Section 9.1.1.4.
1.19 “Third Party Provider” has the meaning ascribed in Section 2.8.
1.20 “Third Party Services” has the meaning ascribed in Section 2.8.
2.1 Professional Services. In the event that the parties execute or are deemed to have executed a Professional Services Agreement, Concept shall provide such services as are set out in the said Professional Services Agreement.
2.2 premier Support Services. In the event that the parties execute or are deemed to have executed a premier Support Services Agreement, Concept shall provide such services as are set out in the said premier Support Services Agreement.
2.3 Software Licensing. Conditional upon the Customer having paid in full to Concept as and when due each Annual Instalment of the License Fee in accordance with the provisions of the said Schedule A (payable in Annual Instalments in advance during the License Term), Concept hereby grants to the Customer during the License Term as set out on the said Schedule A the right and license to access and use and enable Service Users authorized by the Customer to access and use those portions of the suite of software for the Concept Suite Solution and related products as specifically listed in the said Schedule A (the Software), as the same may be revised from time to time by amendments to the said Schedule A that are agreed to and executed by the parties and are deemed to be appended to this Agreement. The initial Annual Instalment of the License Fee shall be paid concurrently with the execution or deemed execution of this Agreement by the Customer. Except as expressly set forth in this Agreement and/or in the said Schedule A hereto as the same may be amended from time to time, no other right or license with respect to the Software is granted or shall be deemed to be granted hereunder, and Concept hereby reserves all rights to the Software. No right or license is granted or shall be deemed to be granted in respect of any software, other than the Software, that is owned, created, developed, authored or marketed by or on behalf of Concept, whether by implication, estoppel or otherwise, unless otherwise agreed in writing by the parties.
2.4 Maintenance Services. Concept will continue to maintain the Software, and for so long as the Customer is not in default in payment of the License Fee, Concept will make available to the Customer all generally available releases in respect of the Software. Where reasonable to do so, Concept will notify the Customer of each such release and provide a summary of major new features, functions and capabilities where applicable.
2.5 Changes in Services and Software. Subject to any provisions to the contrary in any Project Document, Concept may add, modify, change, replace, remove or discontinue any feature, functionality, capability, availability, specification or other characteristic of any of the Services or Software at any time.
2.6 Export Laws. Concept reserves the right to locate the infrastructure for providing the Services in any country or location permitted under applicable laws and regulations. The Customer acknowledges that any Content or data that the Customer or any third party through the Customer’s access sends to or through the Services may be subject to Canadian, U.S. and/or other national export and import laws and regulations. If the Customer or any such third party uses the Services, the Customer and any such third party do so on their own initiative and at their own risk and are responsible for compliance with all applicable laws and regulations, and for obtaining required or applicable export and import authorizations. The Customer and any such third party may not, in violation of applicable laws and regulations, transfer or authorize the transfer of any Services (i) into countries embargoed by Canada or, if applicable, the U.S., or (b) if applicable, to anyone to whom such transfer is restricted or prohibited by any Canadian or U.S. authority having relevant jurisdiction, and by using or permitting the use of the Services, the Customer represents and warrants that the Customer or any such third party is not located in, under the control of, or a national or resident of any such country, or is included on any such government restriction or prohibition list. The Customer has sole responsibility for determining and complying with all such national and international laws, rules and regulations, and Concept shall have no responsibility, obligations or liability regarding the same. Concept shall have no obligation to supply the Software to the Customer if to do so would impose on Concept the risk of being in contravention of the export control legislation or other applicable laws of Canada, the U.S. or any other country. The Customer is responsible, and will indemnify and reimburse Concept, for all costs, expenses or damages incurred by Concept in connection with any violation or breach of this Section by the Customer and any such third party.
2.7 Access to Customer Facilities. In providing any of the Services to the Customer, where physical access is required to any of the Customer’s facilities, Concept shall access and enter such Customer facilities to carry out any of its obligations under the Project Documents only as and when necessary and only with prior Customer approval. Concept shall abide by all of the Customer's rules and policies applicable to such facilities that are made known to Concept.
2.8 Third Party Services. Concept may from time to time recommend, require, provide access to, or enable third party software, applications, products, services or website links (collectively, “Third Party Services”) for consideration or use by the Customer. The Customer’s purchase (including any additional cost), access or use of any such Third Party Services is solely between the Customer and the applicable third party services provider (“Third Party Provider”). Any use by the Customer or Service Users of Third Party Services offered through Concept is entirely at Customer’s risk, and it is the Customer’s responsibility to read, understand and agree to the terms and conditions and/or terms of use and/or privacy policies applicable to such Third Party Services before using them. Concept does not provide and expressly disclaims any warranties with respect to Third Party Services. The Customer acknowledges that Concept has no control over Third Party Services, and Concept shall not be responsible or liable to anyone for such Third Party Services. The availability of Third Party Services through Concept, or the integration or enabling of such Third Party Services with the Services does not constitute or imply an endorsement, authorization, sponsorship, or affiliation by or with Concept. Concept strongly recommends that the Customer seek specialist advice before using or relying on Third Party Services, to ensure they will meet the Customer’s needs. By installing, enabling or using any Third Party Services in connection with the Services, the Customer grants permission for Concept to allow the applicable Third Party Provider to access Customer’s data and Content and to take any other actions as required for the interoperation of the Third Party Services with the Services, and any exchange of data or Content or any other interaction between the Customer and the Third Party Provider is solely between the Customer and such Third Party Provider. Concept is not responsible for any disclosure, modification or deletion of Customer’s or Service Users’ data or Content, or for any corresponding losses or damages that may be suffered, as a result of access by Third Party Services or a Third Party Provider to data or Content. To the fullest extent permitted under applicable law, in no event and under no circumstances will the Customer claim or will Concept have any obligation or liability whatsoever (in contract, tort, common or equitable law, statute law or otherwise) for any direct, indirect, incidental, special, consequential, punitive, extraordinary, exemplary or other damages whatsoever, that result from any Third Party Services or the Customer’s contractual or other relationship with any Third Party Provider.
3.1 Pricing and Invoicing. Each Project Document, as applicable, including but not limited to this Agreement, any Professional Services Agreement and any premier Support Services Agreement, shall set out the Fees and other amounts payable by the Customer for the Services to be undertaken or provided by Concept under that Project Document. Concept shall deliver to the Customer written invoices for the Fees and other amounts due under each such Project Document in accordance with the terms of each such Project Document, as applicable, and delivery of such invoices by email shall constitute effective delivery thereof. The Customer agrees to pay to Concept all Fees and other amounts payable to Concept in accordance with the provisions in each such Project Document and this Agreement.
3.2 Payment of Invoices and Payment Terms. With the exception of the initial Annual Instalment of the License Fee, which shall be paid concurrently with the execution or deemed execution of this Agreement by the Customer, payment of all invoices delivered by Concept to the Customer shall be due within thirty (30) days from the date of each such invoice. The Customer shall be in breach of this Agreement, and such breach shall also constitute a breach of each of the other Project Documents, for non-payment if payment in full of each invoice is not received by Concept within thirty (30) days following the date of such invoice, unless the Customer in writing and in good faith disputes the invoice, or any portion thereof (provided that the portion not in dispute is paid within the said thirty (30) days), by written notice delivered to Concept within the aforesaid thirty (30) day period. If the Customer delivers written notice of dispute as aforesaid, the parties shall in good faith promptly attempt to resolve the disputed amount and no breach by the Customer for such non-payment shall be deemed to have occurred unless the parties are unable to resolve the disputed amount within thirty (30) days of the delivery by the Customer of the notice of dispute or, following resolution of the dispute, the Customer fails to make payment of the disputed amount as resolved within ten (10) days of such resolution. Notwithstanding the foregoing, upon nonpayment of an invoice when it is due, Concept shall be entitled to suspend any or all work or to suspend any or all Services under any or all Project Documents, including the rights and license granted hereunder in relation to the Software, and maintenance and support, until payment of the applicable invoice is received in full, and such suspension shall not constitute a breach by Concept. Concept shall not be responsible for any consequences, damages or losses caused by such suspension, including interruptions in the Customer’s operations that may result. Past due invoices shall bear interest at the rate of 12% per annum on the amount past due, compounded monthly until paid in full. All reasonable costs incurred by Concept in obtaining payment of past due invoices or other amounts payable by the Customer, including reasonable legal fees and disbursements, shall be for the account of and shall be payable by the Customer immediately upon receipt of an invoice therefor from Concept.
3.3 Taxes. Unless otherwise expressly stated, the pricing and Fees stated by Concept do not include applicable direct or indirect local, provincial, state, federal or foreign taxes, levies, duties or similar governmental taxes or assessments of any nature, including goods and services taxes, harmonized sales taxes, value added or use taxes or withholding taxes (collectively “Taxes”). If Concept, in good faith believes that it has the legal obligation to collect or pay or remit Taxes, Concept shall invoice to the Customer and the Customer shall pay to Concept, over and above all other amounts payable under this Agreement and under any other Project Document, all applicable Taxes associated with the Services or arising in connection with any payments required under this Agreement and any Project Document, unless the Customer provides to Concept a valid tax exemption certificate duly and properly issued by the appropriate authority having governance over such Taxes. Tax exemption will only apply from and after the date that Concept receives the tax certificate, and no refunds of previously paid Taxes will be given. Concept shall be responsible only for payment of its own taxes arising on or measured by its own property or net income.
4.1 Ownership. Title to and all intellectual property rights in the Software and all components thereof, and including all enhancements, new developments and new technology provided by or through Concept, shall remain vested exclusively in Concept and the Customer shall have no ownership interest therein. Title to and ownership in all copyright, trademarks, service marks, logos, trade names, company names and domain names of Concept shall remain vested exclusively in Concept.
5.1 General. All Confidential Information of a disclosing party shall be received in strict confidence by and shall be used by the receiving party only to the extent that is strictly necessary for the purposes of carrying out its obligations under this Agreement and any other Project Document as the case may be. No Confidential Information shall be disclosed by the receiving party, or used for any purpose, other than as is strictly necessary for the performance by the receiving party of its obligations under any of the Project Documents, except with the prior written consent of the disclosing party.
5.2 Security of Confidential Information. The receiving party of any Confidential Information of the disclosing party shall take all reasonable steps and precautions to maintain the security and confidentiality of the Confidential Information of the disclosing party, except for such disclosure by the receiving party on a strict "need to know" and confidential basis as is necessary for the purposes of carrying out its obligations under this Agreement and any other Project Document as the case may be, and such disclosure as may be required by applicable law.
5.3 Enforcement. The parties acknowledge that any actual or threatened disclosure or misappropriation of Confidential Information in breach of this Article 5 may cause the disclosing party immediate and irreparable injury, and therefore the disclosing party shall be entitled to apply to any court of competent jurisdiction for injunctive or other equitable relief in relation to such actual or threatened disclosure. The foregoing shall be in addition to and without prejudice to such other rights that the disclosing party may have at law.
5.4 Freedom of Information Requests. Concept acknowledges that the Customer may be subject to requests by persons from time to time for access to information concerning the Customer, Concept or any other person. Concept agrees to reasonably cooperate with and assist the Customer, at the Customer’s expense, to accommodate and assist with such requests, provided that Concept shall not be required to divulge any Confidential Information of or about Concept except as required by applicable law. The Customer shall provide written notice to Concept promptly of any such request for access to information that the Customer receives where the Customer requires the assistance of Concept and shall afford Concept the opportunity to object to the disclosure on the basis that such information is Confidential Information of or about Concept or falls within any statutory or legal protection, exceptions or exclusions. The parties hereby confirm that all information related to this Agreement and the Project Documents is confidential and competitively sensitive. If a party advises the other party that it objects to disclosure of any such information, then such other party shall refuse disclosure to the extent of the objection, subject to applicable law and except as authorized under this Article 5.
6.1 Security of Content. The parties acknowledge and agree that the Customer has sole and complete responsibility for the security of the Customer’s Content and PII. The Customer acknowledges and agrees that Content may be transferred in unencrypted form over various networks. Concept is not responsible to the Customer or any Service User or any other third party for access to and/or manipulation or loss of the Customer’s Content or any PII, whether through authorized or unauthorized access to or use of the Services.
6.2 Content and PII subject to Concept Privacy Policy. The parties acknowledge and agree that the Customer’s access to the Services is by a portal or portals and a website or websites to which Concept also has access. The Customer agrees that its interaction and the interaction of its Service Users with the portals and websites, and any Content or PII that may be collected by or pass through the portals or websites, is subject to and governed by Concept’s Privacy Policy as the same may be amended from time to time. All of the Customer’s right and license to access and use and enable Service Users authorized by the Customer to access and use the Software, including the right to access the Customer’s and Service Users’ data and Content, is subject to and governed by Concept’s Privacy Policy at the relevant time and as the same may be amended from time to time.
6.3 Customer is Controller of Content and PII. The parties acknowledge and agree that the Customer is and shall remain the sole data controller of the Content or PII the Customer or its Service Users upload or provide in relation to the Services and the use thereof. The parties further acknowledge and agree that Concept is and shall remain solely as a service provider to the Customer and does not pre-screen, own or otherwise act as a data controller of the Content or PII. The parties further acknowledge and agree that it is the sole responsibility of the Customer to verify that the security and privacy protections offered by the Services and Concept are adequate and in compliance with all applicable law governing the Customer and the type of data included in the Content or PII which is uploaded in or provided in relation to the Services.
6.4 Customer and Service Users to Comply with Concept’s Terms of Service. The parties acknowledge and agree that all of the Customer’s right and license to access and use and enable Service Users authorized by the Customer to access and use the Software, and including the right to access and use the Customer’s and Service Users’ data and Content, is subject to and governed by Concept’s Terms of Service at the relevant time and as the same may be amended from time to time.
6.5 Cross Border Data Transfers. If the Customer is required to comply with international data protection laws and regulations governing the international or cross-border transfer of data, Content or PII, the parties agree that it is the sole responsibility of the Customer to ensure such compliance. Concept hereby advises and the Customer acknowledges that the data centres in which some or all of the infrastructure for the Services and data, Content or PII are housed or through which data, Content or PII may be transmitted may be located anywhere in the world. The parties acknowledge and agree that any related obligations of Concept under this Agreement and any other Project Document may be performed by any worldwide third party authorized or engaged by Concept.
7.1 Covenants of Customer. The Customer agrees on its own behalf and on behalf of (and to cause) its Service Users as follows:
7.1.1 to comply with all applicable laws, rules and regulations, including those regarding data protection and privacy, export control, and intellectual property;
7.1.2 to comply with Concept’s Terms of Service, as the same may be amended by Concept from time to time. Concept reserves the right to amend such Terms of Service at any time and from time to time;
7.1.3 to comply with Concept’s Privacy Policy, as the same may be amended by Concept from time to time. Concept reserves the right to amend such Privacy Policy at any time and from time to time;
7.1.4 to use reasonable security precautions in accessing and using the Services and providing access to the Services by its Service Users and other individuals to whom the Customer provides access, including the control of access credentials, private keys and other security options;
7.1.5 to cooperate with Concept’s reasonable investigation of outages, security problems, and any suspected breach of this Agreement and any other Project Document;
7.1.6 to comply with all license terms or terms of use for any software (including Software), content (including Content), service (including Services) or websites (whether made available to the Customer through the Services by Concept or by a third party) that the Customer uses or accesses when using the Services;
7.1.7 to keep the Customer’s billing contact and other account and contact information up to date;
7.1.8 to be responsible for the use of the Services by the Customer, Service Users, any person to whom the Customer has given access to the Content or Services, and any person who gains access through the Customer to the Services or to the Customer’s Content;
7.1.9 to use reasonable efforts to prevent unauthorized access to or use of the Services and immediately notify Concept of any known or suspected unauthorized use of the Customer’s access, the Services, the Content, or any other breach of security; and
7.1.10 not to use the Services or permit the use of the Services in any situation where failure or fault of the Services could lead to death or serious bodily injury of any person, or to physical or environmental damage.
7.2 Representations and Warranties of Customer. The Customer represents and warrants to Concept as follows: (i) that it has the full right, power, authority and capacity to enter into this Agreement and each of the other Project Documents that it executes and delivers or is deemed to have executed and delivered, (ii) that the person executing and delivering or that is deemed to have executed and delivered this Agreement on behalf of the Customer has authority to do so and to bind the Customer, (iii) that the execution and delivery or deemed execution and delivery by the Customer of this Agreement and each of the other Project Documents and the use by the Customer of the Services do not and will not violate or constitute a breach under any applicable laws or any other document or agreement to which the Customer is a party or by which it is governed, and (iv) that the Content does not and will not violate or infringe any applicable laws or any intellectual property right of any third party.
8.1 Concept Warranty Disclaimers. Other than as expressly set out in this Agreement or in any other Project Document, the Services and all deliverables are delivered to the Customer on an "as is" basis, without any warranties or representations, express or implied, statutory or otherwise, including, without limitation, warranties of merchantability or fitness for a particular purpose, quality or performance, or non-infringement of the rights of others, and Concept makes no warranty that the Services or the deliverables will meet the Customer’s or any Service User’s specific needs or objectives or business requirements, or be free from errors or bugs, or that there will be uninterrupted operation of the Services or the deliverables, or that the results of the use of the Services will be accurate or reliable, or that all errors or bugs can be corrected or be found in order to be corrected. The Customer has sole and complete responsibility for the suitability of the Services that the Customer chooses from time to time. The Customer acknowledges and agrees that there are inherent risks in internet and cloud security and connectivity that could result in loss of the Customer’s and the Service Users’ security, privacy, confidential information, property, data and/or Content or PII, including but not limited to hacking, and that Concept has no obligations in respect of the same, or the security of the same, except as expressly set out in this Agreement or in any other Project Document. To the extent that any warranty cannot be disclaimed as a matter of applicable law, such warranty shall be limited to the minimum permitted under such applicable law.
8.2 Customer Acknowledgement. The Customer acknowledges and agrees that the foregoing exclusions and disclaimers of warranties, and limitations of liability as hereinafter set out, are an essential part of this Agreement and each Project Document and form the basis and are integral for determining the fees charged under this Agreement and the other Project Documents and that, but for such disclaimers and limitations of liability, Concept would not agree to enter into this Agreement and the Project Documents or any of them.
9.1 Customer Indemnities.
9.1.1 The Customer shall be liable for and shall hold harmless and indemnify Concept, its directors, officers, employees, consultants, agents, affiliates, subsidiaries, suppliers, other customers or service users (collectively the “Concept Indemnitees”) of and from any and all actions, claims, demands, liabilities, losses, damages, fines, penalties, awards, settlements, costs and expenses made against or incurred by any of the Concept Indemnitees arising from or related to:
9.1.1.1 the Customer's use of, reliance on, reference to or ownership of Deliverables for which there has been Full Acceptance within the meaning of any Professional Services Agreement between the parties;
9.1.1.2 any breach of the Customer’s obligations in this Agreement or under any other Project Document;
9.1.1.3 any infringement by the Customer or any Service User of any Concept or third party intellectual property or proprietary rights. If Concept delivers written notice to the Customer that, in Concept’s reasonable opinion, the Customer or any Service User has or is likely to be held to have infringed a third party intellectual property or proprietary right, the Customer shall at its election and expense either (i) procure the necessary rights such that there is no continuing infringement, (ii) replace the alleged infringing material with a non-infringing equivalent, (iii) modify the alleged infringing material to make it non-infringing, or (iv) immediately terminate the use of the allegedly infringing material; and
9.1.1.4 any claim by a third party arising out of the Customer’s or any Service User’s actual or alleged negligence, including gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by this Agreement or any other Project Document, misappropriation or infringement of a third party’s intellectual property right, or violation of this Agreement or any other Project Document (collectively a “Third Party Claim”). In connection with any Third Party Claim pursuant to this Section, Concept will (i) deliver to the Customer prompt written notice of such Third Party Claim, and (ii) cooperate reasonably with the Customer, at the Customer’s expense, in providing information in connection with the Customer’s defense of such claim.
9.1.2 With respect to the indemnities and the agreement to hold harmless by the Customer in Section 9.1.1, the Customer will pay Concept’s full cost of defending each such claim (including reasonable legal fees and disbursements) and will pay any liabilities, losses, damages, fines, penalties, awards, settlements, costs, expenses or other amounts (collectively “Losses”) imposed on or paid by any of the Concept Indemnitees as a result of any such claim. The Customer’s obligations under this Section 9.1 include but are not limited to claims arising out of the acts or omissions of the Customer, Service Users and any other person to whom the Customer or any Service User has given access to the Services or Content, and any person who gains access to the Services or Content as a result of the Customer’s failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by the Customer.
10.1 No Claim against Concept for Incidental, Special or Consequential Damages. To the fullest extent permitted under applicable law, in no event and under no circumstances will the Customer claim or will Concept have any obligation or liability whatsoever (whether arising in contract, tort, common law, equitable law, or statute law, including without limitation claims for warranty, negligence, product liability, or otherwise) for any incidental, special, consequential, punitive, extraordinary, exemplary or indirect damages or liabilities under or related to any Project Document (including but not limited to lost opportunity, lost revenue, loss of income, lost profits, loss of goodwill, lost reputation, lost savings, loss or unavailability of or damage to data or Content or PII, or software restoration). The Customer acknowledges that it has been advised of the forseeability and possibility of such damages and liabilities, including those that may arise in relation to (i) its use or inability to access or use the Services, (ii) the cost to procure substitute services, (iii) unauthorized access to, alteration or manipulation of, or deletion, damage, destruction or loss of the Customer’s or any Service Users’ Content, PII, data, or transmissions, regardless of the cause, and/or (iv) any other matter relating to the Services or arising under this Agreement or any other Project Document.
10.2 No Claim against Concept for Direct Damages. To the fullest extent permitted under applicable law, in no event and under no circumstances will the Customer claim or will Concept have any obligation or liability whatsoever (whether arising in contract, tort, common law, equitable law, or statute law, including without limitation claims for warranty, negligence, product liability, or otherwise) for any direct damages or liabilities under or related to any Project Document. The Customer acknowledges that it has been advised of the forseeability and possibility of such damages and liabilities, including those that may arise in relation to (i) its use or inability to access or use the Services, (ii) the cost to procure substitute services, (iii) unauthorized access to, alteration or manipulation of, or deletion, damage, destruction or loss of the Customer’s or any Service Users’ Content, PII, data, or transmissions, regardless of the cause, and/or (iv) any other matter relating to the Services or arising under this Agreement or any other Project Document.
10.3 Time Limitation for Claims. Neither party shall bring any claim against the other party arising out of or related to any of the Project Documents unless written notice of such claim, including the details thereof, is delivered to the party against whom such claim is made within the shorter period of (i) one (1) year from the date the alleged cause of action arose, or (ii) the applicable limitation period imposed by applicable law.
11.1 Term. This Agreement shall be effective upon execution and delivery or deemed execution and delivery hereof by both parties and shall remain in full force and effect for the License Term (as extended or renewed, if applicable) and for so long as any other Project Document remains in full force and effect and has not been terminated in accordance its respective provisions. The License Term cannot be cancelled or terminated at any time prior to the end of the five (5) year term. This Agreement, conditional upon there being no other Project Document remaining in full force and effect, and conditional upon there being no remaining payment obligations by the Customer under this Agreement or any other Project Document, may be terminated only by written acknowledgement by the parties that this Agreement is terminated.
11.2 License Term. The License Term provided under the said Schedule A will end automatically at the end of the License Term as provided in the said Schedule A. If the Customer wishes to extend or renew the License Term at any time or from time to time, such extension or renewal will require, at the option of Concept, the execution and delivery or deemed execution and delivery by the Customer of the form of Customer Agreement and/or Schedule A in general use by Concept in relation to the Software at such time and at such pricing as may then be mutually agreed.
11.3 Survival of Certain Provisions. In the event of termination of this Agreement or any Project Document, all provisions relating to the following shall continue in full force and effect: (i) the obligation of the Customer to pay to Concept when due hereunder and thereunder all amounts to which Concept is entitled under the provisions of this Agreement and any other Project Documents, (ii) the proprietary rights provisions of Article 4, (iii) the confidentiality provisions of Article 5, (iv) the privacy provisions of Article 6, (v) the representation and warranty provisions of Article 7and any Project Document, if applicable, (vi) the indemnity provisions of Article 9, (vii) the provisions of Article 10, and (viii) any other provisions hereof and of the other Project Documents that by their terms or by their nature are intended to survive termination or expiry.
12.1 Negotiation. All disputes arising under this Agreement and each Project Document shall be settled, if possible, by good faith negotiations by an authorized designate of each of the parties.
12.2 Mediation. If such negotiations fail to resolve any dispute within ten (10) Business Days after a party has delivered written notice of the dispute to the other party, then either party may by written notice to the other party request that such dispute be resolved, if possible, by a process of mediation, and providing that same is agreed upon by the parties (acting reasonably and in good faith), such mediation shall be conducted by a third party independent mediator agreed upon by the parties (acting reasonably and in good faith). Such mediator shall be an individual with applicable experience in and understanding of the software industry. Such mediation shall be commenced within ten (10) Business Days after the delivery of written notice requesting resolution of such dispute by mediation.
12.3 Arbitration. If the parties do not agree to mediate, or if the dispute has not been settled within ten (10) Business Days of the commencement of the mediation described in the preceding Section 12.2, or at the instance of either party at any time, either party may by written notice to the other party require that the dispute be finally settled by arbitration, to take place in Toronto, Ontario unless the parties agree otherwise, and in such notice shall name an arbitrator with significant experience in and understanding of the software industry. Within ten (10) Business Days after the delivery of notice to arbitrate, the party receiving the notice to arbitrate shall give notice to the party delivering the notice to arbitrate of its acceptance of the first named arbitrator, or shall name a second arbitrator with significant experience in and understanding of the software industry and provide notice thereof to the other party, failing which the party receiving the notice shall be deemed to have accepted the first named arbitrator. If the parties have each named different arbitrators, the two named arbitrators shall jointly appoint a third arbitrator with significant experience in and understanding of the software industry within ten (10) Business Days and such third arbitrator shall chair the arbitration, and the decision of any two (2) of the three (3) arbitrators so named shall be final and binding upon the parties hereto. If within the said ten (10) Business Days the two (2) arbitrators named by the parties do not agree upon a third arbitrator, then a third arbitrator with significant experience in and understanding of the software industry shall, upon petition of either party, be appointed by a judge of the Ontario Superior Court of Justice and shall chair the arbitration. The costs of the arbitration shall be allocated to one or both parties as the arbitrator or a majority of the arbitrators may decide. The arbitration shall not be subject to appeal and the procedures of the arbitration will be governed by the Arbitration Act (Ontario) or any successor legislation thereto.
13.1 Provisions of this Agreement to Apply to all Project Documents. It is understood and agreed that the provisions of this Agreement shall apply to and be incorporated by reference into each and every of the other Project Documents.
13.2 Priority of Project Documents. In the event of any conflict or inconsistency between the provisions of this Agreement and the provisions of any other Project Document, the provisions of this Agreement shall supersede and prevail.
13.3 Promotion by Concept. The Customer hereby consents to Concept identifying the Customer as a user of the Concept Suite Solution in footers to the Customer’s portals and websites, and in Concept’s and/or the Concept Suite Solution marketing materials and associated materials.
13.4 Breach or Default. It is understood and agreed that any breach or default under this Agreement or any other Project Document due to acts or omissions of persons for whom a party is at law responsible, which shall include without limitation such party's directors, officers, trustees, employees, staff, personnel, teachers, instructors, students and their parents, agents, contractors, customers, end users, Service Users, consultants and professional advisors constitutes a default by such party under this Agreement and all other Project Documents.
13.5 Force Majeure. Any party affected by an Event of Force Majeure shall temporarily be excused from performance under this Agreement or under any other Project Document of their obligations that are affected by such Event of Force Majeure, provided that such party shall use reasonable commercial efforts to avoid, remove, limit the effect of, or cure the cause thereof and shall resume performance with utmost dispatch when such circumstances are removed or cured. A party claiming an Event of Force Majeure as an excuse for failure or delay in its performance shall deliver prompt notice in writing thereof to the other party and shall keep such other party fully informed as to the continuation of such circumstances until they are removed or cured.
13.6 Notices. Any notification or communication required by or contemplated under the terms of this Agreement or any other Project Document shall be in writing and shall be delivered by courier delivery or transmitted by email to the addresses listed below and shall be deemed to have been delivered or transmitted on the day of actual delivery or transmission (whether or not the email is actually received) if such day is a Business Day, and if such day is not a Business Day, on the next following Business Day. A change in a party’s address shall be given in accordance with the provisions of this Section. Addresses and email addresses for notices shall be:
if to Concept:
Concept Interactive Inc.
55 King St W,
Kitchener, Ontario, Canada
N2G 4W1
Christopher Federico, President
Telephone: 905.542.1678
Email: cfederico@conceptinc.ca
and if to the Customer: ______________________________________ ______________________________________
Contact Name: _______________________
Phone: ______________________________
Email: _______________________________
(but if no specific address is inserted, the Customer address for notices shall be the address that appears in the said Schedule A between the parties therein for the party named as the Customer that references its attachment as Schedule A to the Customer Agreement found at http://www.schoolbundle.ca/062017-agreement/customer-agreement.html).
13.7 Independent Contractor Status. The parties agree that Concept shall be an independent contractor and not an agent, employee, partner or representative of the Customer. The Customer shall have no right to direct or control Concept work hereunder or under any Project Documents. Concept agrees to be responsible for its own business overhead and costs of doing business and to furnish all tools, equipment and materials necessary to accomplish the Services and all work pursuant to this Agreement and the other Project Documents, except as expressly provided in this Agreement or in any other Project Documents. The parties acknowledge and agree that Concept is not responsible in this Agreement or in the other Project Documents for providing any tools, equipment or hardware to the Customer.
13.8 Severability. If any provision of this Agreement or any other Project Document is held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the said provision or any portion thereof held to be invalid, illegal or unenforceable, but no others shall be severed and deleted, and the parties hereto acting reasonably and in good faith shall agree upon a substitute provision or provisions limiting or reducing the scope of the severed provision by the minimal amount such that the same would be valid and enforceable, maintaining, as much as possible, the economics and spirit and intent of this Agreement and the other Project Documents. The enforceability and effectiveness of the remainder of this Agreement or such other Project Document shall not be affected and this Agreement and such other Project Document shall be enforceable without reference to the unenforceable provision or portion thereof.
13.9 Compliance with Applicable Law. The parties each agree to carry out their respective obligations under this Agreement and each of the other Project Documents in compliance with all applicable federal, provincial, state and local laws, rules and regulations.
13.10 Governing Law. This Agreement and each of the other Project Documents shall be deemed to be contracts made in the Province of Ontario, and shall be governed by and construed in accordance with the laws of the Province of Ontario, without regard to Ontario’s conflicts of laws principles, and the federal laws of Canada applicable therein, and the parties irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Ontario and all courts within Canada competent to hear appeals therefrom.
13.11 Successors and Assigns. This Agreement and each of the other Project Documents shall be binding upon and enure to the benefit of the parties hereto and their respective successors and assigns. There are no third party beneficiaries to this Agreement or any other Project Document, to the intent and effect that third parties do not have any rights against either Concept or the Customer under this Agreement or any other Project Document.
13.12 Interpretation. The inclusion of headings in this Agreement and any other Project Document is for convenience of reference only and shall not affect the construction or interpretation hereof or thereof. In this Agreement and in each other Project Document, unless the context requires otherwise, words importing the singular include the plural and vice versa and words importing gender include all genders.
13.13 Entire Agreement. This Agreement and the other Project Documents contain the entire agreement and understanding of the parties with respect to the subject matters hereof and thereof and supersede and replace all prior and contemporaneous discussions, agreements, proposals and understandings, whether oral or in writing, between the parties related to such subject matters, including without limitation, any Customer request for proposal and any response of Concept thereto.
13.14 Amendments. This Agreement and any other Project Document may be changed, modified or amended only by written agreement that is duly executed and delivered by authorized representatives of the parties.
13.15 Waiver. No party's waiver of any breach, or accommodation to the other party, of this Agreement or any other Project Document shall be deemed to be a waiver of any other breach. Any waiver, to be binding on the waiving party, shall be in writing executed by the party so waiving.
13.16 Time of Essence. Time is of the essence of this Agreement and each other Project Document.
13.17 Execution and Delivery, Counterparts. This Agreement and any other Project Document may be executed in two or more counterparts, each of which shall be deemed an original but all of which together shall constitute but one and the same instrument. The delivery of copies of this Agreement or any other Project Document and/or of signature pages by courier or .pdf email shall constitute effective execution and delivery of this Agreement or other Project Document respectively by the parties and may be used in lieu of the original for all purposes. Signatures of the parties transmitted by .pdf email shall be deemed to be their original signatures for all purposes.
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