Software as a Service Agreement

These General Terms govern Customer’s use of the Services and constitute a binding contract between Customer and ibmc. Customer’s use of the Services is at all times subject to the terms and conditions outlined in these General Terms, which incorporate by reference all other terms and conditions governing Customer’s use of the Services, as described in the Contract Terms. 

1. Definitions. Capitalized terms used in this Agreement and not otherwise defined herein have the meanings given to them below: 

• • "Agreement" shall mean the Software as a Service Agreement by and between the Parties, including any Modules selected in the Contract Terms.  

• • "API" means the application-programming interface used by Customer to access certain functionality of the Services. 

• • "Authorized User" shall mean Customer’s employees, consultants, contractors, and agents who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement. 

• • "Confidential Information" shall have the meaning given to that term in the Confidentiality Terms. 

• • "Customer Data" shall mean any data, information or other material, in any form or medium, that is provided, uploaded, submitted, or otherwise transmitted by or on behalf of Customer or an Authorized User to the Services in the course of using the Services. For the avoidance of doubt, Customer Data does not include Resultant Data or any other information reflecting the access or use of the Services by or on behalf of Customer or any Authorized User. 

• • "Documentation" shall mean ibmc's then-current documentation specifying the functionality of the Services that is made generally available by ibmc to its customers. 

• • "Feedback" shall mean any communications or materials suggesting or recommending changes to the ibmc IP, including without limitation, new features or functionality relating thereto.  

• • "Fees" shall have the meaning given to that term in the Contract Terms. 

• • "ibmc IP" shall mean the Services, the Documentation, and any and all intellectual property provided to Customer or any Authorized User in connection with the foregoing. For the avoidance of doubt, ibmc IP includes Resultant Data, any information, data, or other content derived from ibmc's monitoring of Customer's access to or use of the Services, and any Third-Party Materials, but does not include Customer Data. 

• • "ibmc Software" shall mean optional software provided by ibmc for installation on Authorized User’s devices or accessed by Authorized Users from the Customer’s or Authorized User’s software, hardware, or other devices and that allows an Authorized User to use certain functionality in connection with features of the Services. 
    
    
  • "Limited Warranty" shall have the meaning given to that term in these General Terms. 
    
    
  • "Module" or "Modules" shall mean these General Terms, the Contract Terms, the Standard Terms, the Support Terms, and the Confidentiality Terms, individually or collectively as appropriate. For the avoidance of doubt, each reference in the Agreement to "Module" or "Modules" shall mean and include any Modules selected in the Contract Terms. 
    
    
  • "Party" or "Parties" shall mean Customer and ibmc, individually or collectively as appropriate. 
    
    
  • "Resultant Data" shall mean data and information related to Customer's use of the Services that is used by ibmc or one of its affiliates in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services. 
    
    
  • "Services" shall mean the cloud-based software-as-a-service application provided by ibmc or one of its affiliates (including any ibmc Software) and subscribed to under the Product Specification. For the avoidance of doubt, Services includes any applicable Third-Party Materials. 
    
    
  • "Support Services" shall mean those maintenance and support services described in the Support Terms. 
    
    
  • "Term" shall have the meaning given to that term in the Standard Terms. 
    
    
  • "Third-Party Materials" shall mean materials and information, in any form or medium, including any software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to ibmc or one of its affiliates. 
    
    
  • "Updates" shall mean upgrades, patches, enhancements, or fixes for the Services. 

1. • Each Party represents and warrants to the other Party that: (i) it is duly organized and validly existing under the laws of its jurisdiction; (ii) it has the requisite power and authority to enter into this Agreement and to perform its obligations hereunder; (iii) when executed and delivered by such Party, this Agreement will constitute the legal, valid, and binding obligation of that Party, enforceable against that Party in accordance with its terms; (iv) it is in compliance with and shall comply with all applicable laws, regulations and ordinances; and (v) it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement.
     
     
   • Customer covenants that it will not exercise any of its rights under this Agreement in any manner that could reasonably be expected to result in ibmc being in breach of any of its obligations under any applicable third-party license agreement or that otherwise could reasonably be expected to result in any of the respective third-party providers of Third-Party Materials having a right to terminate a third-party license agreement.
     
     
   • ibmc warrants that the Services will conform in all material respects to the service levels set forth in the Support Terms when accessed and used in accordance with the Documentation (the "Limited Warranty"). ibmc does not make any representations or guarantees regarding uptime or availability of the Services unless specifically identified in the Support Terms. The remedies set forth in the Support Terms are Customer's sole remedies and ibmc's sole liability under the Limited Warranty. Except as otherwise expressly set forth in the Support Terms, the foregoing Limited Warranty does not apply, and ibmc strictly disclaims all warranties, with respect to any Third-Party Materials.
     
     
   • EXCEPT FOR THE LIMITED WARRANTY, THE SERVICES AND IBMC IP ARE PROVIDED "AS IS" AND "AS AVAILABLE" AND IBMC HEREBY DISCLAIMS ALL WARRANTIES, COVENANTS AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. IBMC SPECIFICALLY DISCLAIMS (I) ANY AND ALL REPRESENTATIONS, WARRANTIES, COVENANTS AND CONDITIONS CONCERNING THE VALIDITY, ENFORCEABILITY, ACCURACY, TRUTH, RECENCY, QUALITY, COMPLETENESS, SUITABILITY, RELIABILITY AND SCOPE OF THE SERVICES, (II) ALL IMPLIED WARRANTIES, COVENANTS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND (III) ALL WARRANTIES, CONDITIONS OR COVENANTS ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE, AND ANY SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS OR COVENANTS ARE COMPLETELY DENIED AND DISCLAIMED EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID BY A COURT OF COMPETENT JURISDICTION. EXCEPT FOR THE LIMITED WARRANTY, IBMC MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES AND IBMC IP, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.  ALL THIRD-PARTY MATERIALS ARE PROVIDED "AS IS", IBMC MAKES NO WARRANTY, REPRESENTATION, CONDITION OR COVENANT WHATSOEVER WITH RESPECT TO ANY THIRD-PARTY MATERIALS AND ANY REPRESENTATION, WARRANTY, CONDITION OR COVENANT OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.
2.  
3. Indemnification.
   • ibmc Indemnification. 

• • • ibmc shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, fees and the costs of enforcing any right to indemnification under the Agreement and the cost of pursuing any insurance providers ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or other proceeding ("Third-Party Claim") that Customer’s or an Authorized User’s use of the Services (excluding Customer Data and Third-Party Materials) in accordance with this Agreement, infringes or misappropriates such third party’s US patents, copyrights, or trade secrets (an "Infringement Claim"), provided that Customer promptly notifies ibmc in writing of the Infringement Claim, cooperates with ibmc, and allows ibmc sole authority to control the defense and settlement of such Infringement Claim.  
      
      
    • If such an Infringement Claim is made or appears possible, Customer agrees to permit ibmc, at ibmc's sole discretion, to (A) modify or replace the Services, or any component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If ibmc determines that neither alternative is reasonably available, ibmc may terminate this Agreement, in its entirety or with respect to the affected Services, component or part, effective immediately on written notice to Customer.  
      
      
    • ibmc’s obligation to indemnify Customer for an Infringement Claim will not apply to the extent that the alleged Infringement Claim arises from: (A) use of the Services in combination with products, materials, data, software, hardware, equipment, or technology not provided by ibmc or authorized by ibmc in writing; (B) modifications to the Services not made by ibmc; (C) Customer Data; (D) Third-Party Materials; (E) Customer’s marketing, advertising, promotion, or sale of any products or services using the Services; or (F) an act, omission or other matter described in the Customer Indemnification clause, below, whether or not the same results in any Third-Party Claim against or Losses by any ibmc Indemnitees.  
      
      
  • Customer Indemnification. Customer shall indemnify, hold harmless, and, at ibmc’s option, defend ibmc and its officers, directors, employees, agents, affiliates, successors and permitted assigns (collectively, "ibmc Indemnitees") from and against any Losses resulting from: (i) any Third-Party Claim relating to the Customer Data, or any use of the Customer Data in accordance with this Agreement, including, but not limited to, that the Customer Data infringes or misappropriates such third party's intellectual property rights; and (ii) any Third-Party Claim related to or arising out of or resulting from Customer's or any Authorized User's: (A) negligence or willful misconduct, (B) breach of or failure to perform any representation, warranty, covenant, or obligation under this Agreement, including use of the Services in a manner not authorized by this Agreement, (C) use of the Services in combination with data, software, hardware, equipment, or technology not provided by ibmc or authorized by ibmc in writing, or (D) modifications to the Services not made by ibmc. Customer may not settle any Third-Party Claim against ibmc Indemnitees unless ibmc consents to such settlement in writing, and further provided that ibmc will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defense thereof by counsel of its own choice.  

• • Sole Remedy. THIS SECTION SETS FORTH CUSTOMER’S SOLE REMEDIES AND IBMC’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY. IN NO EVENT WILL IBML’S LIABILITY UNDER THIS SECTION EXCEED THE TOTAL OF THE AMOUNTS PAID TO IBML FOR THE SERVICES PURCHASED HEREUNDER.  

        4. Limitation of Liability.

• • IN NO EVENT WILL IBMC BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT FOR (i) ANY INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS, OR LOSS OF USE; (ii) ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES; (iii) LOSS OF GOODWILL OR REPUTATION; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY CUSTOMER DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (v) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT IBMC WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (C) THE LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABLITY, AND OTHERWISE, UPON WHICH THE CLAIM IS BASED, AND (D) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
       
  • IN NO EVENT WILL IBMC’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, EXCEED THE TOTAL AMOUNTS PAID TO IBMC UNDER THIS AGREEMENT FOR THE SERVICES AND SUPPORT SERVICES SOLD HEREUNDER THAT ARE THE SUBJECT MATTER OF OR ARE DIRECTLY RELATED TO THE CAUSE OF ACTION. 

5. Survival. Subject to the limitations and other provisions of this Agreement: (a) the representations and warranties of the Parties contained herein shall survive the expiration or earlier termination of this Agreement; and (b) any other provision that, to give proper effect to its intent, should survive such expiration or termination, shall survive the expiration or earlier termination of this Agreement. 

           6. Corrupt Practices. Neither Party shall perform any acts or make any payments in violation of any applicable anti-corruption or anti-bribery legislation of the United States of America (including, the                 US Foreign Corrupt Practices Act of 1977), Canada (including, the Criminal Code (Canada) and the Corruption of Foreign Public Officials Act (Canada)), the United Kingdom (including, the Bribery Act             2010), the European Union, or any other jurisdiction in which actions contemplated hereunder may be taken, in each case as such legislation may be amended from time to time.

           7. Miscellaneous.

• • Entire Agreement. These General Terms, together with the other Modules and any other documents incorporated herein or therein by reference, constitute the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersede all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. There are no warranties, representations, or other agreements between Customer and ibmc in connection with the Services supplied hereunder except as specifically set forth in this Agreement. In the event of any inconsistency between the statements made in these General Terms, the other Modules, and any other documents incorporated herein or therein by reference, the following order of precedence governs: (i) first, these General Terms; (ii) second, the other Modules; and (iii) third, any other documents incorporated herein or therein by reference; provided, however, that the provisions contained in the Confidentiality Terms shall supersede any language to the contrary found in any other provision in the Agreement. 

• • Interpretation. Each reference in this Agreement to "this Agreement," "the Agreement," "hereunder," "hereof," "herein," or words of similar meaning referring to the Agreement, and each reference in any selected Modules to "this Agreement," "the Agreement," or words of similar meaning referring to this Agreement mean and are a reference to the Agreement as a whole, including the selected Modules.
    
    
  • Language. In the event that this Agreement is characterized or construed as a contract containing standard clauses (boilerplate clauses) or a contract of adhesion under Québec law, consisting either of a contract used in relations outside Québec or a contract referred to in section 21, paragraph 2, or in section 21.5 of the Charter of the French language, CQLR, c. C-11 (without regard to the cases and conditions provided for by any regulation made under section 21.5, paragraph 2, subparagraph 1, of the Charter of the French language), the parties have expressly required and mutually agree that this Agreement and all related documents, including notices and other communications, be written exclusively in English. Dans l’éventualité où la présente convention est qualifiée ou interprétée comme étant un contrat où figurent des clauses-types ou un contrat d’adhésion en vertu du droit applicables au Québec, consistant soit en un contrat utilisé dans les relations avec l’extérieur du Québec, soit en un contrat visé au deuxième alinéa de l’article 21 ou à l’article 21.5 de la Charte de la langue française, RLRQ, c. C-11 (sans égard aux cas et conditions prévus par un règlement pris en vertu du paragraphe 1 du deuxième alinéa de l’article 21.5 de la Charte de la langue française), les parties ont expressément exigé et conviennent mutuellement que la présente convention ainsi que tous les documents qui s’y rattachent, incluant les avis et autres communications, soient rédigés exclusivement en anglais. 

• • Notices. All notices, requests, consents, claims, demands, waivers, summons, and other legal process, and other similar types of communications hereunder must be in writing and addressed to the relevant Party at the address set forth in the Contract Terms. Unless otherwise agreed herein, all notices must be delivered by personal delivery, nationally recognized overnight courier (with all fees pre-paid), or certified or registered mail (in each case, return receipt requested, postage prepaid). Except as otherwise provided in this Agreement, a notice is effective only (i) upon receipt by the receiving Party and (ii) if the Party giving the notice has complied with the requirements of this Section. 
    
    
  • Force Majeure. Any delay or failure of either Party to perform its obligations under this Agreement (other than the payment of money due hereunder) will be excused to the extent that the delay or failure was caused directly by an event beyond such Party's reasonable control, without such Party’s fault or negligence and that by its nature could not have been foreseen by such Party or, if it could have been foreseen, was unavoidable (which events may include natural disasters, epidemics, pandemics, embargoes, export control laws and regulations, explosions, riots, wars, acts of terrorism, strikes, labor stoppages or slowdowns or other industrial disturbances, and shortage of adequate power or transportation facilities) (each, a "Force Majeure Event"). The delayed Party must notify the other Party promptly upon the occurrence of a Force Majeure Event, or performance by the delayed Party will not be considered excused, and the delayed Party shall promptly inform the other Party of its plans to resume performance. 
    
    
  • Amendments. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party; provided, however, ibmc may, at any time, from time to time amend any of the terms contained in this Agreement by notice thereof to Customer to the extent that there is any material amendment to the terms of any agreements or contracts related to Third-Party Materials that affects Customer’s rights hereunder or if the respective third-party provider of any such Third-Party Materials notifies ibmc of any revisions to the delivery of any Third-Party Materials (each, a "Third-Party Materials Amendment"). Any amendments required hereunder pursuant to a Third-Party Materials Amendment shall automatically become effective when notice is given as provided in this Agreement, or such later date as may be stated in ibmc’s notice. 
    
    
  • Waiver. No waiver by any Party of any of the provisions of this Agreement shall be effective unless explicitly set forth in writing and signed by an authorized representative of the Party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement shall operate or be construed as a waiver thereof, nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege. 
    
    
  • Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the Parties shall negotiate in good faith to modify this Agreement so as to effect the original intent of the Parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.  
    
    
  • Governing Law; Jurisdiction. This Agreement shall be governed by, and construed and enforced in accordance with, the laws in force in the Province of Ontario (excluding any conflict of laws rules or principles which might refer such construction to the laws of another jurisdiction). The Parties hereto agree to submit to the exclusive jurisdiction of the courts of the Province of Ontario and waive any objection relating to improper venue or forum non conveniens to the conduct of any proceeding in any such court. 
    
    
  • United Nations Convention. The Parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods and any local implementing legislation related thereto.
    
    
  • Assignment. Customer may not assign, transfer, delegate, or subcontract any of its rights or obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of ibmc. Any purported assignment, transfer, delegation, or subcontract in violation of this Section shall be null and void. No assignment, transfer, delegation, or subcontract shall relieve Customer of any of its obligations hereunder. ibmc may at any time assign, transfer, delegate, or subcontract any or all of its rights or obligations under this Agreement without Customer’s prior written consent. 
    
    
  • Successors and Assigns. This Agreement is binding on and inures to the benefit of the Parties to this Agreement and their respective permitted successors and permitted assigns. 
    
    
  • Export Regulation. The Services may be subject to certain export control laws, including the Canadian Export and Import Permits Act. Customer shall not, directly or indirectly, export, re-export, or release the Services to, or make the Services accessible from, any jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. Customer shall comply with all applicable federal laws, regulations, and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval) that prohibit or restrict the export or re-export of the Services or any Customer Data outside of Canada.   
    
    
  • Cumulative Remedies. All rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the Parties, or otherwise. Despite the previous sentence, the Parties intend that Customer’s indemnification rights set forth in these General Terms are the Customer’s exclusive remedies for an Infringement Claim. 
    
    
  • Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under the Confidentiality Terms or, in the case of Customer, the Use Restrictions in the Standard Terms, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy, that the amount of such damages would be extremely difficult to measure, and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.  
    
    
  • No Third-Party Beneficiaries. Other than the ibmc Indemnitees, this Agreement benefits solely the Parties to this Agreement and their respective permitted successors and assigns and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.  The Parties hereby designate the ibmc Indemnitees as third-party beneficiaries of the Customer Indemnification clause set forth in these General Terms, having the right to enforce the terms set forth in such clause.  
    
    
  • Relationship of the Parties. The relationship between the Parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, franchise, business opportunity, joint venture or other form of joint enterprise, employment or fiduciary relationship between the Parties, and neither Party shall have authority to contract for or bind the other Party in any manner whatsoever. No relationship of exclusivity shall be construed from this Agreement.  
    
    

• [END OF GENERAL TERMS]