Scope: Consensia Inc. (“Consensia”) has developed an enterprise software platform. Client wishes to access the Platform and use the Services. Subject to the terms and conditions described herein, Consensia will provide the Services set forth in the Order Form (as defined herein), or as otherwise agreed by both parties in writing.
- Definitions: The following terms when capitalized and used herein shall have the following meanings:
- “Agreement” means these Services Terms and Order Form, and any attachment hereto;
- “Authorized Users” means the Client’s employees or members who are authorized to use the Software, during the Term;
- “Business Day” means 9 am to 5 pm any day other than a Saturday or Sunday or other holiday observed;
- “Client” means the Client named on the Consensia Order Form;
- “Confidential Information” means all information disclosed to a party or its Personnel, by the other party about the disclosing party’s business that is confidential to the disclosing party and which shall include all information which ought reasonably be understood to be confidential by its nature;
- “Client Content” means all information supplied by the Client or its Authorized Users for inclusion in or use in association with the Software;
- “Client Network” means the information network of the Client used to deliver information to its Personnel and to third parties and includes all computer hardware, all telecommunication systems and all software utilized in relation thereto;
- “Effective Date” means the date of the Agreement, as described on the Order Form
- “Intellectual Property Rights” means any right or protection of Intellectual Property (as defined below) existing from time to time in a specific jurisdiction, whether registered or not, under any patent law or other invention or discovery law, copyright law, performance or moral rights law, trade-mark or unfair competition law, confidential information law, or other similar laws and includes legislation by competent governmental authorities and judicial decisions under common law or equity;
- “Order Form” means the order form signed by Client and consensia that describes the services to be provided. In the event of any conflict between the terms of this Agreement and the terms of the purchase order, this Agreement shall take precedent.
- “Personal Information” means information about an identifiable individual, but does not include the name, title or business address or telephone number of an employee of an organization;
- “Personnel” means a party’s directors, officers, employees, consultants, contractors, agents, and representatives;
- “Platform” means the Consensia Software, software development toolkits and other toolkits, and all technology and infrastructure used by consensia and made available to Client pursuant to this Agreement and as further described on the Order Form, including all related Intellectual Property but excluding any Client Content.
- “Services” means the services to be provided by consensia to Client as set forth in the Order Form, a Statement of Work or otherwise under this Agreement, including, to the extent described in the Order Form, configuration and set-up, generation of licenses, analytics and reporting services, training services, and other professional services
- “Software” means the application software developed by consensia as described in the Order Form including Updates;
- “Term” means the term of this Agreement, from the Effective Date to the Expiry Date on the Order Form, unless otherwise amended in writing between the parties;
- “Updates” means any updates, upgrades, enhancements (including new modules and functionality), modifications, customizations, versions and releases to the Software that consensia makes available on the Platform from time to time.
- Platform License: consensia agrees that Client has a limited, revocable, non-transferable, non-exclusive right to access and use the Platform during the Term, subject to Client’s compliance with the terms and conditions of this Agreement. All rights not expressly granted to Client are reserved by consensia. Client shall be fully responsible for all Authorized Users’ compliance with this Agreement for such use.
Except as expressly permitted by consensia or to the extent expressly authorized by the Platform, Client will not (and will not allow any third party to): (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Platform or any Services; (ii) modify, translate, or create derivative works based on the Platform or the Services; (iii) rent, lease, distribute, sublicense, resell, pledge, assign, or otherwise transfer or encumber rights to the Platform or any Services; (iv) use the Platform for time sharing or service bureau purposes or otherwise for the benefit of a third party, other than Authorized Users; or (v) remove or otherwise alter any proprietary notices or labels from the Platform, the Services, or any portion thereof. Client will use the Platform, and all Services solely in compliance with all requirements of laws.
consensia may, without notice, temporarily suspend the Client’s, or any of its Authorized Users’ access to the Software if consensia reasonably suspects that the Client, or any of its Authorized Users, or any other parties are obtaining unauthorized access to the Software, or are using otherwise valid Client login credentials in any unauthorized manner.
- Client Content: Client is solely responsible for Client Content, as well as for the content of any communications by the Client or its Authorized Users. Client is solely responsible for making and keeping backup copies of Client Content. The Client or its Authorized Users are solely responsible for applying the appropriate level of access rights to Client Content and to communications involving the use of the Platform. Consensia shall not be responsible or liable for the deletion or accuracy of Client Content.
Client grants to consensia, throughout the Term, a limited, revocable, non-transferable, non-exclusive, royalty-free, license to use, reproduce, promote, distribute, modify, cache, and transmit Client Content via the Platform solely for the purposes of this Agreement. Without limiting any of Client’s obligations under this Agreement, Client will provide consensia all Client Content reasonably required for consensia’s performance hereunder. The parties agree that consensia does not take legal title to any Client Content supplied by Client.The Client acknowledges and agrees that the Client shall be responsible and liable for all uses made by the Client or its Authorized Users of the Services.
- Title: Except for the rights and licenses expressly granted herein, consensia retains all right, title, and interest in and to the Platform. consensia owns all right, title, and interest in and to all modifications or derivatives of, and improvements to, the Platform and the Services, excluding any Client Content. Client acknowledges that consensia Intellectual Property includes data, modules, components, designs, utilities, objects, processes, program listings, tools, models, diagrams, analysis frameworks, leading practices, trade-marks, patents, industrial designs, know-how, show-how, software, and specifications owned or developed by consensia (“Intellectual Property”) and that nothing contained herein will constitute an assignment or transfer of any such consensia Intellectual Property Rights to Client.
- Representations and Warranties: consensia hereby represents and warrants that it has taken commercially reasonable actions to ensure that any software or other technology which it uses which in any way comes in contact with the Client Network will not contain any code instructions, data or functions (including but not limited to viruses, worms, Trojan horses, data bombs, or time bombs), the purpose of which is to maliciously cause the said technology to cease operating, or to damage, interrupt, interfere with or hinder the operation of the Client Network or other computer systems, the system in which it resides, or any other software or data on such system. The Client hereby represents and warrants that it or its Authorized Users will not use the Services in contravention of this Agreement or any applicable laws or regulations.
The Client acknowledges and agrees that the Services are provided via mobile application and the internet and that the Client’s and its Authorized Users’ information, including Personal Information, may be transferred across national borders and stored or processed in any country in the world. The Client is solely responsible for obtaining and maintaining any necessary consents or permissions from its Authorized Users or others whose information may be collected, recorded, processed, stored, used, disclosed, transferred, exchanged or otherwise handled as a result of, or as part of, any communications involving the use of the Services and agree to obtain and maintain all such consents or permissions throughout the Term of this Agreement.
- Disclaimer: Except as expressly provided herein, the Services and Software is provided on an ‘as is’, basis and consensia makes no other representations, warranties or conditions and explicitly disclaims all other warranties express or implied, including but not limited to merchantability, fitness for a particular purpose, uninterrupted or error free service, that defects will be corrected, or that the Software will meet Client’s purposes.
- Limitation of Liability: EXCEPT IN RESPECT OF A BREACH OF SECTION 11 (CONFIDENTIALITY) OR ANY OF THE LICENSE OR USE RESTRICTIONS CONTAINED HEREIN, NEITHER PARTY WILL BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT, UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY, FOR ANY: (A) INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES (EVEN IF THE PARTY CAUSING SUCH LOSS OR DAMAGE HAS BEEN ADVISED OR HAD KNOWLEDGE OF THE POSSIBILITY OF SAME OR COULD HAVE REASONABLY FORESEEN SAME), INCLUDING LOST BUSINESS REVENUE, LOSS OF PROFITS OR FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS); (B) COST OR PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY OR SERVICES; OR (C) AMOUNTS IN THE AGGREGATE THAT EXCEED THE FEES PAID (OR, IN CLIENT’S CASE, PAYABLE) BY CLIENT TO CONSENSIA UNDER THIS AGREEMENT IN THE SIX (6) MONTHS PRIOR TO THE DATE THE CAUSE OF ACTION AROSE.
- Fees: Client will pay consensia fees for the Services as set forth in the Order Form and any individual Statement of Work (collectively, “Fees”). Client will pay all invoices issued under this Agreement within thirty (30) days from date of receipt of a valid invoice. Client will be responsible for paying any applicable sales, use or other taxes or duties, tariffs or the like applicable to the Fees (except for taxes on consensia income). All payments will be made without deduction for withholding taxes. Late payments may be subject to fees at the rate of 1.5% per month or, if lower, the maximum rate allowed by law. If Client fails to pay any Fees when due, in addition to any other rights consensia may have, consensia will have the right to suspend delivery of all or a portion of the Services to Client, provided that consensia has supplied Client prior notice and thirty (30) days’ opportunity to cure such deficiency. If Client believes that consensia has billed Client incorrectly, Client must notify consensia in writing no later than thirty (30) days after the date of the receipt of the invoice, or it will be considered to be valid.
- Confidentiality: During and after the termination or expiration of this Agreement for any reason, neither party shall disclose to any third party, and each party shall keep strictly confidential, the Confidential Information of the other, protecting the confidentiality thereof with at least the same level of effort that it employs to protect the confidentiality of its own proprietary and confidential information and, in any event, by reasonable means. Specific information shall not be considered Confidential Information of a party if (i) it was known to the recipient (prior to its disclosure by the disclosing party) directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (ii) becomes known (independent of disclosure by the disclosing party) to the recipient directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) is, or becomes, publicly known or otherwise ceases to be confidential, except through a breach of this Agreement by the recipient; or (iv) was independently developed by the recipient without use of any of the Confidential Information of the disclosing party.
Each party may disclose the Confidential Information of the other only to such party’s Personnel engaged in a use permitted by this Agreement and with a need to know, provided that such Personnel are subject to a legal duty to maintain the confidentiality and restricted use thereof. Neither party shall use the Confidential Information of the other except solely as necessary in and during the performance of this Agreement. Each party shall be responsible for any improper use or disclosure of any Confidential Information of the other by its Personnel.
Either party may disclose the Confidential Information of the other to the extent required by order of a court of competent jurisdiction; provided, however, that the recipient of such Confidential Information shall, to the extent permitted by law, give the other party prompt notice, and shall use its reasonable efforts to cooperate with the other party, at the other party’s cost, if the other party wishes to obtain a protective order or otherwise protect the confidentiality of such Confidential Information.
In the event of any improper disclosure or loss of Confidential Information, the receiving party shall immediately notify the other party. Upon termination or at any other time, each party shall promptly return or destroy, at the other party’s option, the other party’s Confidential Information, and any notes, reports or other information incorporating or derived from such Confidential Information, and all copies thereof, within five (5) business days of the other party’s written request, and shall certify to the other party that it no longer has in its possession or under its control any Confidential Information of the other party in any form whatsoever.
- Promotional Materials: Client agrees that consensia may use Client’s name and logos in any promotional, advertising, marketing or other materials in print or electronic format.
- Term and Termination: This Agreement is effective and binding upon execution by both parties and shall remain in effect for an initial Term of twelve (12) months. This Agreement shall automatically renew and extend the Term for successive twelve month terms on the anniversary of the effective date, unless either party provides the other party with at least thirty (30) days’ written notice in advance of the expiration date of the Term. This Agreement will terminate (i) at the end of the Term, (ii) for any reason at any time by providing ninety (90) days’ prior written notice to the other party; or (iii) upon the occurrence of any material breach of this Agreement which is not resolved within thirty (30) days after the non-breaching party provides notice. No refund of prepaid amounts will be provided related to any termination under item (ii) initiated by Client.
- Notices: The address for notices of consensia shall be as follows:
Consensia: Consensia Inc.
7950 Dublin Blvd 320c
Dublin, CA 94568
Telephone: +1 (925) 997-6407
and, as provided on the Order Form for Client. All notices shall be in writing, and shall be deemed to be sufficiently given and received (i) if by courier, on the Business Day on which they are actually delivered); (ii) if by email, at the commencement of the next Business Day following transmission thereof); or (iii) if mailed by mail, on the fourth Business Day following the date of mailing. Either party may change its address for notices by advising the other party in writing.
- Force Majeure: Neither party will be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control, including, but not limited to, earthquakes, loss of utilities, and other disasters. Notwithstanding the foregoing, If a party seeks to excuse itself from its obligations under this Agreement due to a force majeure event, that party will promptly notify the other party of the delay or non-performance, the reason for such delay or non-performance and the anticipated period of delay or non-performance.
- Each of the provisions contained in this Agreement is distinct and severable and a declaration of invalidity or unenforceability of any such provision by a court of competent jurisdiction shall not affect the validity or enforceability of any other provision hereof.
- This Agreement may not be modified unless agreed to in writing by both parties. The parties shall not assign or transfer their respective rights or obligations under this Agreement except with the other party’s prior written consent. Notwithstanding the foregoing, Consensia may assign its rights to any successor entity without consent. This Agreement shall enure to the benefit of, and be binding upon, the parties hereto and their respective successors, affiliates and assigns.
- This Agreement may be signed in counterparts and each of such counterparts shall constitute an original document and such counterparts, when taken together, shall constitute one and the same instrument.
- The termination or expiration of this Agreement shall not affect the survival and enforceability of any provision of this Agreement which is expressly or implicitly intended to remain in force after such termination or expiration.
- Any and all controversies or claims arising out of, under, or relating to the Agreement, or the breach thereof, shall be determined and settled in accordance with the laws of the Province of Ontario, Canada applicable thereto, without reference to conflicts of laws principles.
- Any disputes between Consensia and the Client regarding the interpretation of this Agreement shall be settled by arbitration in accordance with the provisions of the Arbitrations Act of Ontario. The decision of the arbitrator shall be final and binding and not subject to appeal. The arbitration shall take place, in the Province of Ontario, Canada.
- The words “party” or “parties” when used herein refer, respectively, to a party and to both of the parties to this Agreement. The descriptive headings of this Agreement are inserted for convenience of reference only and do not constitute a part of and shall not be utilized in interpreting this Agreement
- Definitions: The following terms when capitalized and used herein shall have the following meanings: