This Master Subscription and Services Agreement is made as of April 15, 2021 (the “Effective Date”) between Goodkind Software Corporation, a Canadian corporation (“Goodkind”) and our Customers.
A. Goodkind offers a SaaS platform that empowers organizations to connect and engage with their customers with asynchronous, video-based interactions.
B. Customer wishes to engage Goodkind to provide services to Customer, as described in order forms and statements of work entered into between Goodkind and Customer from time to time.
The parties agree as follows:
“Admin User” means a natural person who is an employee, contractor or agent of Customer authorized by Customer to use the Services for administrative purposes, and to whom Customer or, when applicable, Goodkind, upon Customer’s written request, has supplied a user identification and password (for Services utilizing authentication). Admin Users may include, for example, employees of Customer or of third parties with which Customer transacts business.
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For the purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the entity or subject entity.
“Agreement” means this Master Subscription Agreement and any schedules, exhibits, addenda and hyperlinked documents, and all Order Forms between Goodkind and Customer, as it or they may from time to time be amended or supplemented.
“Applicable Laws” means, in respect of any person, property, transaction or event, all applicable Canadian, U.S., or foreign federal, provincial, state, municipal or local government laws, statutes, rules, by-laws and regulations, and all applicable official rules, policies, notices, directives, orders, judgments and decrees of any Governmental Authority, all as amended from time to time.
“Beta Services” means Goodkind services or functionality that may be made available to Customer to try at its option and which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, trial, or by a similar description.
“Content” means any text, audio, video, images, and other content that is provided by Customer or by others on behalf of Customer, such as (without limitation) information about third party contractors, services, events, and policies. Content does not include Third Party Service Content or Customer Data.
"Customer Data" means data submitted by or for Customer to the Services or provided by Goodkind to Customer in output files generated by the Services, excluding Content and Third Party Service Content. The term Customer Data does not include Personal Data or Service Data.
“Data Center Service Provider” means any third party retained by Goodkind to provide all or part of the Services at one or more secure data centers at any time during this Agreement.
“de-identified” means, in relation to information and a natural person, information that has been processed such that natural persons can no longer be identified, in reasonably foreseeable circumstances, from such processed information either alone or in combination with other information.
“Documentation” means the Goodkind documentation and policies applicable to the Services, as amended by Goodkind from time to time, which are generally available to Admin Users through the Web Portal.
“Force Majeure Event” means any event or circumstances beyond the reasonable control of a party, including an act of God, act of government, flood, fire, pandemic, epidemic, disease, earthquake, civil unrest, act of terror, strike or other labour problem, Internet or telecommunications service failure or delay, Third Party Service Provider failure or delay, World Health Organization declared pandemic or epidemic (including, but not limited to, COVID-19), recognized health threats as determined by the World Health Organization, the Centers for Disease Control or the Public Health Agency of Canada (but only with respect to new restrictions in effect subsequent to the Effective Date), H1N1 or similar infectious diseases, or government action, decree or order affecting the jurisdiction where the Services are to be provided to Customer or a denial of service attack
“Governmental Authority” means any governmental or regulatory authority, agency, commission or board of any applicable Canadian, U.S., or foreign federal, provincial, state, municipal or local government, parliament or legislature, or any court or, without limitation, any other law, regulation or rule-making entity having jurisdiction in the relevant circumstances, and whether now or in the future constituted or existing, or any person acting or purporting to act under the authority of any of them.
“identified or identifiable” means, in relation to information and a natural person, that the natural person is specifically identified in the information or that there is a serious possibility that the natural person could be specifically identified through the use of that information, alone or in combination with other reasonably available information, and in particular by reference to an identifier such as a name, an identification number, location data, or an online identifier, or by reference to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including viruses, worms, time bombs and Trojan horses.
“Mobile App” means Goodkind’s standard mobile application that enables Admin Users to obtain access to the Platform.
“Order Form” means an ordering document describing the Services to be provided under this Agreement that is entered into between Customer and Goodkind, including any schedules, exhibits, addenda and hyperlinked documents, as it or they may from time to time be amended or supplemented. By entering into an Order Form that references this Agreement, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party to this Agreement.
“Personal Data” means any information relating to an identified or identifiable natural person.
“Platform” means Goodkind’s proprietary platform comprised of various components, which is made available by Goodkind as a SaaS service.
“Services” means the services that are ordered by Goodkind under an Order Form and made available by Goodkind to Customer as SaaS services. Services do not include Third Party Services.
“Third Party Service” means a service that is provided by a third party through the Platform.
“Third Party Service Content” means any text, audio, video, images, and other content that is provided by a Third Party Service Provider (or by others on behalf of the Third Party Service Provider), such as (without limitation) information about the Third Party Services.
“Third Party Service Provider” means the provider of a Third Party Service.
“Usage Data” means information about Customer’s and Admin Users’ use or interaction with the Platform and
“Web Portal” means Goodkind’s standard web portal that enables Admin Users to obtain access to the Platform for administrative purposes.
2. PROVISION OF SERVICES BY GOODKIND
Services. Goodkind will make the Services available to Customer pursuant to this Agreement and the applicable. Order Forms.
2.3 Beta Services. From time to time, Goodkind may make Beta Services available to Customer. Customer may choose to try such Beta Services or not in its sole discretion. Beta Services are intended for evaluation purposes and not for production use, are not supported, and may be subject to additional terms. Beta Services are not considered “Services” under this Agreement. However, all restrictions, Goodkind reservations of rights, and Customer obligations concerning the Services, and use of any related Third Party Services, will apply equally to Customer’s use of Beta Services. Unless otherwise stated, any Beta Services trial period will expire on the earlier of one year from the trial start date or the date that a version of the Beta Services becomes generally available without the applicable Beta Services designation. Goodkind may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Goodkind will have no liability for any harm or damage arising out of or in connection with a Beta Service.
3. USE OF SERVICES BY CUSTOMER
Subscriptions. Unless otherwise provided in the applicable Order Form, Services are purchased as subscriptions for the term stated in the applicable Order Form; and (b) any added subscriptions for Services will terminate on the same date as the initial subscription for Services.
Service Limits. Customer’s access to the Services may be subject to service limits specified in Order Forms, including with respect to the number of Admin Users. Customer will not exceed such service limits, without Goodkind’s prior written consent.
Customer Responsibilities. Customer shall (a) be responsible for its Affiliates and Admin Users’ compliance with this Agreement, the Documentation and the Order Forms, (b) subject to the service limits, invite and de-authorize any Admin Users using the Web Portal, (c) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Documentation, and notify Goodkind promptly of any such unauthorized access or use, (d) use Services and Documentation only in accordance with this Agreement, the Documentation, the Order Forms and Applicable Laws, and (e) comply with terms of service of any Third Party Services with which Customer uses the Services and be responsible for its Admin Users’ compliance with such terms of service.
Customer Restrictions. Customer shall not, or permit any third party to, directly or indirectly: (a) make any Services, Third Party Services or Documentation available to, or use any Services, Third Party Services or Documentation for the benefit of, anyone other than Customer, Affiliates or Admin Users, unless expressly stated otherwise in an Order Form or the Documentation; (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Services, Third Party Services or Documentation, or include any Services, Third Party Services or Documentation in a service bureau or outsourcing offering; (c) use the Services or Third Party Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, including intellectual property rights and privacy rights; (d) use the Services or Third Party Services to store or transmit Malicious Code, or to send spam; (e) interfere with or disrupt the integrity or performance of the Platform or any Services, Third Party Services, or third-party data; (f) attempt to gain unauthorized access to the Platform or any Services, Third Party Services or Documentation or their related systems or networks; (g) permit direct or indirect access to or use of any Services, Third Party Services or Documentation in a way that circumvents a contractual service limit, or use any Services or Third Party Services to access or use any Goodkind intellectual property except as permitted under this Agreement, an Order Form, or the Documentation; (h) copy the Services or the Third Party Services or any part, feature, function or user interface of the Services or the Third Party Services; (i) copy Documentation except for internal use by Customer; (j) frame or mirror any part of any Services, Third Party Services or Documentation, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation; (k) access or use any Services, Third Party Services, or Documentation in order to build a competitive product or service or to benchmark with a non-Goodkind product or service; (l) reverse engineer any Services or Third Party Services or any software used to provide them (to the extent such restriction is permitted by Applicable Laws); or (m) otherwise use the Services in contravention of this Agreement, an Order Form or Documentation. Unless otherwise specified in an Order Form, an Admin User’s access credentials may not be shared with any other person and an Admin User’s identification may only be reassigned to a new natural person replacing one who will no longer use the Services.
4. FEES AND PAYMENT
Fees. Customer will pay all fees and expenses specified in Order Forms and this Agreement. Except as otherwise specified in an Order Form, (a) payment obligations are non-cancellable and fees paid are non-refundable, and (b) quantities purchased cannot be decreased during the relevant subscription term. Except as otherwise specified in an Order Form, Customer will also pay reasonable travel, accommodation and meal expenses for pre-approved travel. Customer represents and warrants to Goodkind that all information provided by Customer to Goodkind that is used by Goodkind to calculate the fees is and shall be accurate, true and complete, in all material respects.
Invoicing and Payment. Unless otherwise stated in the Order Form, (a) fixed fees will be invoiced in advance and variable fees and expenses in arrears, (b) fees and expenses are due net 30 days from the invoice date, and (c) fees and expenses are payable by electronic funds transfer. Customer is responsible for providing complete and accurate billing and contact information to Goodkind and notifying Goodkind of any changes to such information. If Customer does not notify Goodkind in writing of any issue that Customer may have with an invoice within 60 days of the invoice date, then Customer is deemed to have accepted the invoice and Customer waives any right to dispute the amount of the invoice.
Overdue Charges. If any invoiced amount is not received by Goodkind by the due date, then, without limiting Goodkind’s rights or remedies, the invoiced amounts will accrue late interest at the rate of 1.5% of the outstanding balance per month (equivalent to 19.56% per annum), or the maximum rate permitted by law, whichever is lower.
Taxes. Goodkind’s fees and expenses do not include any taxes, levies, duties or similar governmental assessments of any nature, including value-added, HST, GST, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under this Agreement. If Goodkind has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Goodkind will invoice Customer and Customer will pay that amount unless Customer provides Goodkind with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Goodkind is solely responsible for taxes assessable against it based on its income, property and employees. All payments by Customer under this Agreement will be without deduction or withholding for Taxes unless Customer is compelled by Applicable Laws to deduct or withhold Taxes, in which event Customer will pay to Goodkind such additional amounts necessary to enable Goodkind to receive, after all deductions and withholdings for such Taxes, a net amount equal to the full amount which would otherwise have been payable under this Agreement if no such deduction or withholding was required.
5. ADDITIONAL TERMS
5.1 Mobile App. Admin Users are solely responsible any data charges and similar fees associated with their respective access and use of the Services through the Mobile App or otherwise through a mobile device.
Goodkind Security. Goodkind will implement and maintain appropriate technical and organizational measures, as determined by Goodkind, designed to protect the security of Personal Data and non-public Customer Data, including measures designed to protect such data from unauthorized access, use, modification, deletion, loss or disclosure.
(a) Goodkind will report to Customer any material security breach or other event where there is an actual material loss, theft, unauthorized access, acquisition, use, disclosure, alteration, or destruction of or to Personal Data or non-public Customer Data that is within the possession or control of Goodkind (a “Security Incident”) promptly following determination by Goodkind that a Security Incident has occurred, and in any event within 24 hours following such determination. The initial report will be made to the security contacts designated by Customer from time to time. Customer acknowledges that the Services are provided from the data centers of the Data Center Service Provider, and that Goodkind relies and depends on the Data Centre Service Provider providing notice to Goodkind of Security Incidents relating to those data centers.
(b) Customer will report to Goodkind any Security Incident (not previously reported by Goodkind to Customer) promptly following determination by Customer that a Security Incident has occurred, and in any event within 24 hours following such determination. The initial report will be made to the Goodkind security contacts designated by Goodkind from time to time.
(c) Goodkind will investigate the Security Incident. Goodkind will provide Customer with detailed information about the Security Incident to the extent reasonably possible and to the extent known. Goodkind will take reasonable steps within its systems to mitigate the effects of the Security Incident. Goodkind will use commercially reasonable efforts to provide to Customer the information required by Customer to fulfil any obligations under Applicable Laws to notify Customer, regulators and data subjects of the Security Incident. Customer acknowledges that the Services are provided from a multi-tenant cloud environment used by many Goodkind customers, and that Goodkind may be obligated to provide notice of the Security Breach to other Goodkind customers, Admin Users, and other third parties.
Applicable Laws. Goodkind will comply with all Applicable Laws which are (a) generally applicable to Goodkind, and (b) generally applicable to Goodkind’s provision of the Services to Customer. Customer will comply with all Applicable Laws which are (i) applicable to Customer, (ii) generally applicable to Customer’s use of the Services, and (iii) applicable to Customer’s collection, use or disclosure of Personal Data of Admin Users.Changes to the Services. Subject to Goodkind’s obligations under “Warranty for Services”, Goodkind may make changes to the Services from time to time, in its discretion, including to add or modify features or functionality.
Goodkind Personnel, Subcontractors and Service Providers. Goodkind will be responsible for the performance of its personnel, subcontractors and service providers and for their compliance with Goodkind’s obligations under this Agreement, except as otherwise specified in this Agreement. For greater certainty, Third Party Service Providers are not subcontractors or service providers of Goodkind.
Third Party Services. If Customer elects to use any Third Party Services with the Services, then Customer grants Goodkind permission to allow the Third Party Service Provider to access the Services as required for the interoperation of the Third Party Services with the Services. Goodkind is not responsible for any disclosure, modification or deletion of Content, Customer Data or Personal Data resulting from access by the Third Party Service Provider. Any use by Customer of a Third Party Service, and any exchange of data between Customer and the Third Party Service Provider, is solely between Customer and the Third Party Service Provider. Goodkind does not warrant or support Third Party Services or other non-Goodkind products or services, whether or not they are designated by Goodkind as “certified” or otherwise, unless expressly provided in an Order Form. Goodkind does not guarantee the continued availability of Third Party Services. If Goodkind reasonably forms the view that a Third Party Service used with the Services by Customer is causing or will cause Goodkind to violate Applicable Laws or third-party rights, then Goodkind may notify Customer. Promptly after receipt of such notice by Customer, the parties will meet and negotiate in good faith to resolve the issue. If within 10 days after receipt of such notice by Customer (or such longer period as may be agreed between the parties, each acting reasonably) the parties do not agree on a solution or Customer does not instruct Goodkind to disable the applicable Third Party Service, then Goodkind may disable the applicable Third Party Service until the potential violation is resolved.
Service Data. Goodkind uses Customer Data, Personal Data and Usage Data collected by the Platform and Services in a de-identified form (“Service Data”). Goodkind may combine the Service Data with that of other customers. Goodkind may use the Service Data to perform, deliver, support, test and improve the Services, to develop new products and services, to understand usage, and for any other Goodkind business purposes. No identifiable Customer Data or Personal Data is contained in the Service Data, nor any data that would identify any company or organization. Goodkind may combine the Service Data with that of other customers.
6. PROPRIETARY RIGHTS AND LICENSES
Reservation of Goodkind Rights. Notwithstanding anything to the contrary contained in this Agreement, Goodkind and its licensors have and will retain all right, title and interest in and to the Platform, the Services, the Documentation, and the software and systems used to provide the Platform and the Services (including all patent, copyright, trademark, trade secret and other intellectual property rights), and all copies, modifications, improvements, developments, enhancements and derivative works of any of them. Each Third Party Service Provider and its licensors have and will retain all right, title and interest in and to its Third Party Services, documentation, and the software and systems used to provide the Third Party Services (including all patent, copyright, trademark, trade secret and other intellectual property rights), and all copies, modifications and derivative works of any of them. Customer acknowledges that it is obtaining only a limited right to use the Services, Third Party Services and Documentation. No rights are granted to Customer under this Agreement other than as expressly set forth in this Agreement.
License by Goodkind for Documentation. Goodkind grants to Customer a worldwide, non-exclusive, non-transferable, royalty-free license to use the Documentation solely for Customer’s internal business purposes associated with its use of the Services, and solely for the applicable subscription term. Customer will reproduce Goodkind’s copyright notice on all copies of the Documentation. On the expiry of the applicable subscription term, Customer will destroy or delete all copies of the Documentation then in its possession or control.
License by Customer for Content and Customer Data. As between Customer and Goodkind, Customer and its licensors own all right, title and interest in and to all Content and Customer Data. Customer grants Goodkind, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Content and Customer Data as necessary for Goodkind to perform, deliver, support, test, and improve the Services, and to otherwise provide the Services in accordance with this Agreement and no other purpose.
6.4 License by Customer to use Feedback. Customer grants to Goodkind and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Admin Users.
Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes non-public Customer Data. Confidential Information of Goodkind includes the Platform, the Services and the Documentation. Confidential Information of each party includes the terms of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed by the Receiving Party to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.
Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (b) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in this Agreement. Customer shall not disclose Goodkind’s Confidential Information to any person who would reasonably be understood to be a competitor of Goodkind or the personnel of any such person without the prior written consent of Goodkind (which consent may be conditioned on such party entering into a non-disclosure agreement directly with Goodkind). Goodkind may disclose relevant aspects of Customer’s Confidential Information to Third Party Service Providers, to the extent that such disclosure is reasonably necessary for the provision of Third Party Services. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliates, legal counsel or accountants will remain responsible for such Affiliates’, legal counsel’s or accountant’s compliance with this “Confidentiality” section.
Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, then the Disclosing Party will reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to that Confidential Information.
Return of Confidential Information. Except as otherwise expressly provided below, on the request of the Disclosing Party, the Receiving Party will (a) return or destroy all tangible forms of Confidential Information of the Disclosing Party in its possession or control, (b) use all commercially reasonable efforts to erase or destroy all electronic copies of such Confidential Information, and (c) certify to the Disclosing Party that such materials have been either returned, erased or destroyed, in each case except as to signed original copies of any contractual documents or other materials customarily held by the Receiving Party as legal archival material. Notwithstanding the above, the Receiving Party may retain copies of the Confidential Information of the Disclosing Party for archival, audit, legal and/or regulatory purposes.
8. WARRANTIES AND DISCLAIMERS
Warranties for Services. Goodkind warrants that during an applicable subscription term (a) the Services will perform materially in accordance with the applicable Documentation, and (b) Goodkind will not materially decrease the overall functionality of the Services. For any breach of this warranty, Customer’s exclusive remedy and Goodkind’s entire liability will be for Goodkind to use commercially reasonable efforts to cause the Services to comply with the warranty within a reasonable period of time after receipt of notice in writing from Customer.
Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OR CONDITION OR OTHER TERM OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS OR OTHER TERMS, INCLUDING ANY STATUTORY OR IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. THIRD PARTY SERVICES AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. GOODKIND DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION OR DELAY, THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES SATISFY ALL APPLICABLE LAWS OR REGULATORY REQUIREMENTS THAT ARE APPLICABLE TO CUSTOMER. GOODKIND DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY DATA CENTER SERVICE PROVIDER.
Future Functionality. Customer agrees that, unless otherwise expressly provided in an Order Form, Customer’s purchases of the Services are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Goodkind regarding future functionality or features.
9. MUTUAL INDEMNIFICATION
Indemnification by Goodkind. Goodkind will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, legal fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Goodkind in writing of, a Claim Against Customer, provided Customer (a) promptly gives Goodkind written notice of the Claim Against Customer, (b) gives Goodkind sole control of the defense and settlement of the Claim Against Customer (except that Goodkind may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability), and (c) gives Goodkind all reasonable assistance, at Goodkind’s expense. If Goodkind receives information about an infringement or misappropriation claim related to the Services, Goodkind may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, subject to Goodkind’s warranties under “Warranties for Services”, (ii) obtain a license for Customer’s continued use of the Services in accordance with this Agreement, or (iii) if the options under clauses (i) or (ii) are not possible on terms that Goodkind considers to be commercially reasonable, terminate Customer’s subscriptions for the Services on 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the subscription terms of the terminated subscriptions. The above defence and indemnification obligations do not apply to the extent a Claim Against Customer arises from (A) a Third Party Service or Customer’s use of a Third Party Service, (B) Customer’s breach of this Agreement, the Documentation, applicable Order Forms or the service terms applicable to Third Party Services, (C) use or combination of the Services with any other product or service, (D) modification of the Services or any component without Goodkind’s express written approval, or (E) use of the Services for any purpose or in any manner other than as specifically contemplated by this Agreement without Goodkind’s express written approval.
Indemnification by Customer. Customer will defend Goodkind against any claim, demand, suit or proceeding made or brought against Goodkind by a third party alleging that any Customer Data or Content, or any Customer communication that infringes or misappropriates such third party’s intellectual property rights or other rights, or arising from Customer’s use of the Services, Third Party Services or Documentation in breach of this Agreement, the Documentation, any Order Form or Applicable Laws (each a “Claim Against Goodkind”), and will indemnify Goodkind from any damages, legal fees and costs finally awarded against Goodkind as a result of, or for any amounts paid by Goodkind under a settlement approved by Customer in writing of, a Claim Against Goodkind, provided Goodkind (a) promptly gives Customer written notice of the Claim Against Goodkind, (b) gives Customer sole control of the defence and settlement of the Claim Against Goodkind (except that Customer may not settle any Claim Against Goodkind unless the settlement unconditionally releases Goodkind of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense.
Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this section.
10. LIMITATION OF LIABILITY
Limitation of Liability. IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GOODKIND AND ITS AFFILIATES, SUBCONTRACTORS, SERVICE PROVIDERS, LICENSORS, AND THIRD PARTY SERVICE PROVIDERS, AND ITS AND THEIR DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS (COLLECTIVELY, THE “GOODKIND TEAM”), FOR ALL CLAIMS, ACTIONS, DAMAGES, LIABILITIES, COSTS AND EXPENSES OF EVERY KIND AND NATURE, INCLUDING LEGAL FEES AND EXPENSES (COLLECTIVELY, “LOSSES”) ARISING OUT OF OR RELATED TO THE SERVICES OR UNDER OR IN CONNECTION WITH THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER FOR THE SERVICES DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THESE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT (INCLUDING AN INDEMNITY) OR TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY.
Exclusion of Consequential and Related Damages. IN NO EVENT WILL CUSTOMER OR ANY MEMBER OF THE GOODKIND TEAM HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THE SERVICES OR UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES OR GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COVER, BUSINESS INTERRUPTION OR DOWNTIME COSTS, THIRD-PARTY DAMAGES (INCLUDING ANY SERVICE LEVEL CREDITS PAYABLE BY CUSTOMER OR ANY OTHER PERSON), LOSS OF DATA, OR PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, WHETHER AN ACTION IS IN CONTRACT (INCLUDING UNDER AN INDEMNITY) OR TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THIS DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW AND WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER “FEES AND PAYMENT”.
Proportional Liability. Any liability of a party for Losses, however caused (including by negligence), in connection with the Services or this Agreement is reduced to the extent that the other party or its Affiliates, or its or their employees, contractors or agents, contribute to the Losses.
No double claiming. Neither party will be able to recover the same Loss more than once by bringing separate claims under or in connection with this Agreement.
11. TERM AND TERMINATION
Term of Agreement. This Agreement commences on the Effective Date and continues until all subscriptions under
this Agreement have expired or have been terminated.
Term of Subscriptions. The term of each subscription will be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any renewal term will increase by up to 10% above the applicable pricing in the prior term, unless Goodkind provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. The parties will sign a new Order Form for each renewal.
Termination for Breach. Either party may terminate this Agreement and/or any Order Form, immediately upon written notice to the other party if the other party (a) materially breaches this Agreement and, where curable, failures to cure such breach within 30 days after its receipt of written notice of such breach, or (b) becomes the subject of a petition in bankruptcy, insolvency proceeding, receivership, liquidation or composition for the benefit of creditors. If any Order Forms are terminated by Customer in accordance with this Section 11.3, then Goodkind will refund Customer any prepaid fees covering the remainder of the subscription terms of the terminated subscriptions. In no event will termination relieve Customer of its obligation to pay any fees for the period prior to the effective date of termination. If this Agreement is so terminated by Goodkind, then Customer will pay to Goodkind an amount equal to the aggregate of all fees payable for the Services for the remainder of the subscription terms applicable to the Services.
Surviving Provisions. Any sections that by their nature are intended to survive the termination or expiry of this Agreement will survive any termination or expiration of this Agreement.
Suspension. Goodkind may suspend use of some or all of the Services if Goodkind believes the suspension is reasonably needed to prevent unauthorized access to the Platform, or for other security reasons, or to otherwise protect Goodkind’s systems or other customers. In such circumstances, Goodkind will give as much notice as reasonably possible before Goodkind suspends, except where Goodkind reasonably believes that Goodkind needs to suspend immediately. Goodkind may also suspend use of some or all of the Services on 30 days written notice to Customer if (a) Customer does not pay any undisputed amounts that are due under this Agreement within 30 days of their due date, or (b) Customer or an Admin User is in material breach of this Agreement, and if either such breach remains uncured at the expiration of such 30 day notice period. A suspension will remain in effect only for so long as the condition or need exists.
12. GENERAL PROVISIONS
Export Compliance. The Platform, the Services, other Goodkind technology, and derivatives of them may be subject to export laws and regulations of Canada, the United States, and other jurisdictions. Goodkind and Customer each represents that it is not named on any Canadian or U.S. government denied-party list. Customer will not permit any Affiliate or Admin User to access or use any Service in a country named on Canada's Area Control List under Canada's Export and Import Permits Act, in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), or provide the Services to an Affiliate that is, or appoint as an Admin User any person or entity that is, prohibited from receiving U.S. exports, or otherwise use the Services in violation of any Canadian or U.S. export law or regulation.
Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction.
Employee Non-Solicitation. During the term of this Agreement and for one year after the expiry of the term, Customer will not, either on its own account or for any other person, endeavour to employ or contract with any employee of Goodkind, its Affiliates, or its or their contractors, with whom Customer has dealt in relation to this Agreement. This restriction will not prevent Customer from making general advertisements or other solicitations to the public or from hiring any employee of Goodkind, its Affiliates, or its or their contractors who responds to such an advertisement or who otherwise initiates discussions with Customer. In the event of a breach of this provision, Customer will pay to Goodkind an amount equal to 6 months’ salary of the applicable employee, as liquidated damages and not as a penalty.
Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Goodkind and Customer regarding the Services, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. This Agreement may not be amended except by a written amending agreement signed by duly authorized officers of both parties. In the event of any conflict or inconsistency among the following documents, the order of precedence will be (a) the applicable Order Form; (b) any schedule, exhibit, addendum or hyperlinked document to this Agreement; (c) the body of this Agreement; and (d) the Documentation.
Force Majeure Events. Neither party will be liable for damages caused by delay or failure to perform its obligations under this Agreement to the extent such delay or failure is caused by a Force Majeure Event; provided that the affected party: (a) provides the other party with prompt notice of the nature and expected duration of the Force Majeure Event; (b) uses commercially reasonable efforts to address and mitigate the cause and effect of such Force Majeure Event; (c) provides periodic notice of relevant developments; and (d) provides prompt notice of the end of such Force Majeure Event. This provision will not excuse a failure to make a payment when due.
Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
Third-Party Beneficiaries. The Goodkind Team are third party beneficiaries of Section 10. There are no other third-party beneficiaries under this Agreement.
Publicity. Each party will obtain the other party’s prior written consent before making any public communication related to this Agreement or the Services. Notwithstanding the above: (a) Goodkind may issue a press release announcing the relationship between Customer and Goodkind and Customer will have the right to review and approve the press release prior to distribution; (b) Goodkind may publicize the launch of the Services (in coordination with Customer); (c) Goodkind may list Customer as a customer of Goodkind on the Goodkind website and on other Goodkind sales and promotional materials; and (d) for each of these purposes, Goodkind may make reasonable use of Customer’s logos and trademarks. Any Goodkind use of Customer’s logos and trademarks will be subject to any applicable trademark use guidelines provided by Customer to Goodkind from time to time.
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Notices. All notices, requests, demands, claims, and other material communications under this Agreement must be in writing, and will be deemed duly given when delivered personally or by courier, or when delivered by email if receipt of the email is acknowledged by the intended recipient, in each case addressed to the intended recipient as indicated on the Order Form. Either party may change its address for notice from time to time by notice given in accordance with this section.
Waivers. A waiver of any term or breach of this Agreement is effective only if it is in writing and signed by or on behalf of the waiving party. No omission, delay or failure to exercise any right or power, or any waiver by either party of any breach or default, whether express or implied, or any failure to insist on strict compliance with any provision of this Agreement, will constitute a waiver of any other provision. Any waiver of any provision of this Agreement will not constitute a continuing waiver unless otherwise expressly provided.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to Applicable Laws, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
Assignment. Neither party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld). Notwithstanding this restriction, either party may assign this Agreement in its entirety (including all Order Forms) without the consent of the other party to any Affiliate or to a purchaser of all or substantially all of the assets of such party. The assigning party will obtain from the permitted assignee and deliver to the other party an undertaking in writing in favour of the other party (in form and content acceptable to the other party, acting reasonably) to be bound by and to perform all of the obligations of the assigning party under this Agreement. The assigning party and the permitted assignee will be jointly and severally liable to the other party for all of the assigning party’s obligations under this Agreement. Any assignment in contravention of the above will not be effective against the non-assigning party.
Interpretation. The parties agree that this Agreement was drafted with the participation of both parties and will not be construed either against or in favour of either party. All amounts specified in this Agreement or an Order Form are in US dollars, unless otherwise specified. The term “including” and similar terms will mean “including without limitation”. Except where otherwise expressly provided in this Agreement, remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity or otherwise. The parties agree that this Agreement and all dealings in connection with this Agreement will be in English, and all Services will be provided in English, unless otherwise agreed by the parties.
(a) If any dispute or disagreement of any kind arises at any time with respect to this Agreement, its interpretation or application, its performance by the parties, or in respect of any defined legal relationship associated with or derived from this Agreement or its performance (a “Dispute”), the parties agree that good faith negotiations shall take place between the parties with the objective of resolving the Dispute. If such good faith negotiations have not resolved the Dispute within a period of 14 days, the dispute or disagreement shall be referred to the Chief Executive Officers of the parties or their designates who will attempt in good faith to resolve such dispute or disagreement.
(b) If within the next following period of 14 days, the Dispute has not been resolved to the satisfaction of the parties, the Dispute shall be referred to binding arbitration pursuant to the Arbitration Act (Ontario) or the International Commercial Arbitration Act (Ontario), as applicable. Within 10 days of the giving of such notice of arbitration, the parties will jointly select a single arbitrator who will be independent of the parties and acceptable to the parties. If a single arbitrator has not been selected during such 10 day period, then, unless the parties agree otherwise, the Dispute will be resolved by a single arbitrator appointed pursuant to the Arbitration Act (Ontario) or the International Commercial Arbitration Act (Ontario), as applicable, on application by either party. The fees and expenses of the arbitrator will be borne equally between the parties. The arbitrator may order interest on any award and the arbitrator may award costs to either party. In the absence of any such award of costs, each of the
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parties will bear its own costs of the arbitration. The arbitration will take place in Toronto, Ontario, unless the parties agree otherwise.
(c) The parties agree that negotiations and arbitration will all be without recourse to the courts and that the award of the arbitrator will be final and binding, except that (i) either party may appeal an arbitration award to the courts of Ontario on a question of law, and (ii) either party may apply to the courts of Ontario for an interim measure of protection or for any order for equitable relief which the arbitrator does not have the jurisdiction to provide.
(d) Subject to any express rights of suspension provided in this Agreement, the parties will continue to perform their obligations under this Agreement pending resolution of any Dispute.
Governing Law. This Agreement, and any disputes arising out of or related to this Agreement, will be governed exclusively by the laws of the Province of Ontario and the federal laws of Canada applicable in the Province of Ontario, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. Subject to “Dispute Resolution”, the provincial and federal courts located in Toronto, Ontario will have exclusive jurisdiction over any disputes arising out of or related to this Agreement, and each party consents to the exclusive jurisdiction of those courts.
Counterparts. The parties agree that this Agreement may be executed by electronic means, and in counterparts.