Software as a Services Agreement

Standard Terms

These Standard 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 Standard Terms, which incorporate by reference all other terms and conditions governing Customer’s use of the Services, as described in the Contract Terms. 

1. Access and Use.  

• • Provision of Access. Subject to and conditioned on Customer's payment of Fees and compliance with all other terms and conditions of this Agreement, ibmc hereby grants Customer a non-exclusive, non-sublicensable, non-transferable (except as expressly authorized or permitted by the terms of the Agreement) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. ibmc shall provide to Customer the necessary passwords and network links or connections to allow Customer to access the Services.
    
    
  • Documentation License. Subject to the terms and conditions contained in this Agreement, ibmc hereby grants to Customer a non-exclusive, non-sublicensable, non-transferable (except as expressly authorized or permitted by the terms of the Agreement) license to use the Documentation during the Term solely for Customer's internal business purposes in connection with its use of the Services. 
    
    
  • Changes. ibmc reserves the right, in its sole discretion, to make any changes to the Services and ibmc IP that it deems necessary or useful to: (i) maintain or enhance: (A) the quality or delivery of ibmc's services to its customers, (B) the competitive strength of or market for ibmc's services, or (C) the Services' cost efficiency or performance; or (ii) comply with applicable law. 
    
    
  •  Use Restrictions. Customer shall not use the Services for any purposes beyond the scope of the access granted in this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Authorized Users to: (i) modify, translate or create derivative works of the Services or ibmc IP, in whole or in part; (ii) copy, rent, lease, lend, sell, license, sublicense, assign, distribute, pledge, publish, transfer, or otherwise make available or encumber rights to the Services or ibmc IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Services or ibmc IP, in whole or in part (except to the extent applicable laws specifically prohibit such restriction); (iv) remove or otherwise alter any proprietary notices or labels from the Services or ibmc IP; (v) access or use the Services or ibmc IP in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; (vi) use the Services or ibmc IP to build an application or product that is competitive with the Services or any of its components; (vii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; (viii) bypass any security device or protection measures used by the Services or ibmc IP (or other accounts, cloud instance, computer systems or networks connected to the Services or ibmc IP); (ix) disclose results of any Services benchmark tests or use the Services or ibmc IP for purposes of competitive analysis; or (x) otherwise access or use the Services or ibmc IP beyond the scope of the authorization granted under the Provision of Access clause, above, including providing the Services or ibmc IP to or for the benefit of a third party. 
    
    
  • Reservation of Rights. Nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer or any third party any intellectual property rights or other right, title, or interest in or to the Services, ibmc IP, or the Third-Party Materials. All right, title, and interest in and to the Services, ibmc IP, and the Third-Party Materials are and will remain with ibmc and the respective rights holders in the Third-Party Materials.
    
    
  • Suspension. Notwithstanding anything to the contrary in this Agreement, ibmc may temporarily suspend Customer's and any Authorized User's access to any portion or all of the Services, without incurring any resulting obligation or liability, if: (i) ibmc receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires ibmc to do so; (ii) ibmc reasonably determines that (A) there is a threat or attack on any of the ibmc IP, (B) Customer's or any Authorized User's use of the ibmc IP disrupts or poses a security risk to the ibmc IP or to any other customer or vendor of ibmc, (C) Customer, or any Authorized User, is using the ibmc IP for fraudulent or illegal activities, (D) subject to applicable law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, (E) Customer or any Authorized User has failed to comply with any material term of this Agreement or used the Services or ibmc IP beyond the scope of the rights granted or for a purpose not authorized under this Agreement, or (F) ibmc's provision of the Services to Customer or any Authorized User is prohibited by applicable law; (iii) any vendor of ibmc has suspended or terminated ibmc's access to or use of any third-party services or products required to enable Customer to access the Services, including any Third-Party Materials; or (iv) Customer fails to make payments on or before the due date specified in the applicable Product Specification and such failure continues for thirty (30) days or more (any such suspension described in subclause (i), (ii), (iii), or (iv) of this subsection, a "Service Suspension"). ibmc shall use commercially reasonable efforts to: (x) provide written notice of any Service Suspension to Customer, (y) provide updates regarding resumption of access to the Services following any Service Suspension, and (z) resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. ibmc will have no liability for any damages, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a Service Suspension. 
    
  
  2. Customer Responsibilities. Customer has and will retain sole responsibility for all Customer Data, including its content and use. Customer shall use the Services in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer's use of the Services (including those related to data privacy, international communications, export laws and the transmission of technical or personal data laws). Customer is responsible and liable for all uses of the Services and Documentation resulting from access provided by Customer, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement, including but not limited to uploading Customer Data onto the Services, unless otherwise agreed by the Parties in writing. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Authorized Users, and any act or omission by an Authorized User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use reasonable efforts to make all Authorized Users aware of this Agreement's provisions as applicable to such Authorized User's use of the Services and shall cause Authorized Users to comply with such provisions, provided that a failure by Customer to make any Authorized User aware of this Agreement shall not relieve Customer of any obligation or liability hereunder. Customer shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) protect against any unauthorized access to, or use of, the Services; and (b) control the content and use of Customer Data, including the uploading or other provision of Customer Data for processing by the Services.
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• • Implementation Assistance. ibmc agrees to use reasonable commercial efforts to provide standard implementation assistance for the Services.  

• • Service Levels. Subject to the terms and conditions of this Agreement, ibmc shall use commercially reasonable efforts to make the Services available in accordance with the service levels set forth in the Support Terms.
    
    
  • Support Services. The access rights granted hereunder entitle Customer to ibmc's standard Support Services during the Term of this Agreement. ibmc may modify the Support Services provided hereunder from time to time in its sole discretion. 
    
    
  • Third-Party Services. Customer acknowledges and agrees that the Services may operate on, with or using Third-Party Services. ibmc is not responsible for the operation of any Third-Party Services, including the availability or operation of the Services to the extent such availability and operation is dependent upon Third-Party Services.  Customer is solely responsible for procuring any and all rights necessary for it to access Third-Party Services and for complying with any applicable terms or conditions thereof. ibmc does not make any representations or warranties with respect to Third-Party Services or any third-party providers.  Any exchange of data or other interaction between Customer and a third-party provider is solely between Customer and such third-party provider and is governed by such third party provider's terms and conditions. 
    
    
  • Service Updates. From time to time, ibmc may provide Updates to its customers generally without additional charge, and such Updates will become part of the Services and subject to the terms of this Agreement; provided, however, Customer acknowledges and agrees that ibmc shall not have any obligation under this Agreement or otherwise to provide any such Updates. Customer understands that ibmc may cease supporting old versions or releases of the Services at any time in its sole discretion. ibmc will promptly notify Customer of any such Updates. 
    
    
  
  4. Data Backup. The Services do not replace the need for Customer to maintain regular data backups or redundant data archives. Customer acknowledges and agrees that the Services are not a long-term storage mechanism and is wholly separate from the storage and archival of Customer Data.  Customer is responsible for selecting, licensing, securing, administering, and making available the mechanism(s) that store and archive Customer Data, including establishing procedures to perform backups, accuracy checks, and security precautions to guard against possible malfunctions, loss of Customer Data, and unauthorized access. Customer, not ibmc, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership of or right to use all Customer Data.  ibmc is not responsible to Customer for unauthorized access to Customer Data or the unauthorized use of the Services unless such access is due to ibmc's gross negligence or willful misconduct.  Customer is responsible for the use of the Services by any person to whom Customer has given or otherwise allowed access to the Services, even if Customer did not authorize such use.  CUSTOMER ACKNOWLEDGES AND AGREES THAT SOFTWARE ERRORS CAN CAUSE A SIGNIFICANT LOSS OF CUSOMTER DATA AND THAT IBMC HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF CUSTOMER DATA. 
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           5. Fees and Payment.  

• • Fees. Customer shall pay ibmc the Fees without offset or deduction; provided, however, ibmc shall have the right to increase the Fees on each anniversary of the Effective Date in accordance with its standard pricing policies. The Fees are due and payable within thirty (30) days of the Effective Date and, thereafter, on the anniversary date of the Effective Date, and the Product Specification will be deemed amended accordingly.  All Fees and other amounts payable by Customer under this Agreement shall be exclusive of all sales, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by Customer. Customer shall be responsible for all such taxes, charges, and costs; provided, that, Customer shall not be responsible for any taxes imposed on, or with respect to, ibmc's income, revenues, gross receipts, personnel or real or personal property or other assets.  
    
    
  • Usage Measures. If the Fees are based upon a consumption-based or usage-based pricing model agreed upon by ibmc and Customer, and Customer's usage of the Services exceeds the applicable usage limits, as agreed upon by ibmc and Customer in writing, ibmc will invoice Customer for such excess usage at ibmc's then-current standard rates for such usage, on a pro-rata basis from the first date of such excess usage through the end of the then-current term, and Customer will pay ibmc for such excess usage no later than thirty (30) days from the date of the invoice. 
    
    
  • Payment Terms. Customer shall make all payments hereunder in Canadian dollars on or before the due date specified in the Product Specification. If Customer fails to make any payment when due, without limiting ibmc's other rights and remedies: (i) ibmc may charge interest on the past due amount at the highest lawful rate (up to a maximum of one and one half percent (1.5%) per month); (ii) Customer shall reimburse ibmc for all costs incurred by ibmc in collecting any late payments or interest, including, without limitation, attorneys' fees, court costs, and collection agency fees; and (iii) if such failure continues for thirty (30) days or more, ibmc may suspend Customer's and its Authorized Users' access to any portion or all of the Services until such amounts are paid in full.
    
    
  •  No Deductions or Setoff. Customer shall not, and acknowledges that it will have no right, under this Agreement, any other agreement, document or law, to withhold, offset, recoup or debit any amounts owed (or to become due and owing) to ibmc or any of its affiliates, whether under this Agreement or otherwise, against any other amount owed (or to become due and owing) to it by ibmc or its affiliates, whether relating to ibmc’s or its affiliates’ breach or non-performance of this Agreement or any other agreement between Customer or any of its affiliates, and ibmc or any of its affiliates, or otherwise. 
    
    
  • Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder.  ibmc may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid ibmc with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with the Payment Terms clause, above. Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds five percent (5%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement. 
    
    
• 6. Intellectual Property Ownership; Feedback. 
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  • ibmc IP. Customer acknowledges that, as between Customer and ibmc, ibmc owns all right, title, and interest, including all intellectual property rights, in and to the ibmc IP and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Materials. Customer has no right, license, or authorization with respect to any of the ibmc IP except as expressly set forth in the Provision of Access and Documentation License clauses, above, in these Standard Terms, or the applicable third-party license, in each case subject to the Use Restrictions clause, above. All other rights in and to the ibmc IP are expressly reserved by ibmc. In furtherance of the foregoing, Customer hereby unconditionally and irrevocably grants to ibmc an assignment of all right, title, and interest in and to the Resultant Data, including all intellectual property rights relating thereto.
    
    
  •  Customer Data. ibmc acknowledges that, as between ibmc and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data; provided, however, Customer acknowledges and agrees that ibmc will have the limited right to use the Customer Data to the extent necessary to provide the Services. Customer hereby irrevocably grants all such rights and permissions in or relating to Customer Data as are necessary or useful to ibmc to provide the Services to Customer, to enforce this Agreement, and to exercise ibmc's rights and obligations hereunder. 
    
    
  • Feedback. If Customer or any of its employees or contractors sends or transmits any Feedback to ibmc by mail, email, telephone, or otherwise, ibmc is free to use such Feedback irrespective of any other obligation or limitation between the Parties governing such Feedback. Customer hereby assigns to ibmc on Customer's behalf, and on behalf of its employees, contractors and/or agents, all right, title, and interest in, and ibmc is free to use, without any attribution or compensation to any Party, any ideas, know-how, concepts, techniques, or other intellectual property rights contained in the Feedback, for any purpose whatsoever, although ibmc is not required to use any Feedback.
    
  
  7. Termination; Effect of Termination.
  
  

• • Term. The term of this Agreement commences on the Effective Date and, unless terminated earlier pursuant to this Agreement's express provisions, will continue in effect from such date for the period of time specified as the Initial Term in the Contract Terms. This Agreement will automatically renew for successive twelve (12) month terms unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least ninety (90) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term"). 
    
    
  • Termination. In addition to any other express termination right set forth in this Agreement:
     
    • ibmc may terminate this Agreement with immediate effect upon written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder and such failure continues for ten (10) days after Customer’s receipt of written notice of nonpayment; (B) breaches any of its obligations in the Use Restrictions clause, above, or Customer Responsibilities clause, above, of these Standard Terms; or (C) breaches any of its obligations in the Confidentiality Terms; 
    • either Party may terminate this Agreement with immediate effect upon written notice to the other Party, if the other Party breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach and intent to terminate; or 
    • either Party may terminate this Agreement with immediate effect upon written notice to the other Party, if the other Party: (A) is dissolved or liquidated or takes any corporate action for such purpose; (B) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (C) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (D) makes or seeks to make a general assignment for the benefit of its creditors; or (E) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business. 
      
      
  • Effect of Expiration or Termination of the Agreement. Upon expiration or earlier termination of this Agreement, (i) Customer shall immediately discontinue use of the ibmc IP and, without limiting Customer's obligations under the Confidentiality Terms, Customer shall, as instructed by ibmc, delete, destroy, or return all copies of the ibmc IP and certify in writing to ibmc that the ibmc IP has been deleted or destroyed, as applicable, and (ii) all rights, licenses, consents, and authorizations granted by ibmc hereunder shall immediately terminate. No expiration or termination of this Agreement will affect Customer's obligation to pay all Fees that have become due before such expiration or termination; provided, however, if Customer terminates this Agreement for cause, Customer will be relieved of any obligation to pay any Fees attributable to the period after the effective date of termination and ibmc will refund to Customer Fees paid in advance for Services that ibmc has not performed as of the effective date of termination. If ibmc terminates the Agreement for cause, all Fees that would have become payable had the Agreement remained in effect until expiration of the then-current term will become immediately due and payable, and Customer shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of ibmc's invoice therefor. 
    
    [END OF STANDARD TERMS]