LEASEPATH SOFTWARE LICENCE
TERMS & CONDITIONS
1. Definitions.
1.1 “Additional Seats” shall have the meaning ascribed to it in Section 6.1.
1.2 “Base Term” shall have the meaning ascribed to it in Section 12.1.
1.3 “Claim” shall have the meaning ascribed to it in Section 8.1.
1.4 “Confidential Information” shall have the meaning ascribed to it in Section 7.1.
1.5 “Customer Data” shall mean all proprietary information of Customer submitted to or processed using the Software.
1.6 “Customer Policies” shall have the meaning ascribed to it in Section 7.6.
1.7 “Documentation” shall mean the user information about the Software, whether in printed or electronic form, and any revisions thereof, provided by Vendor to Customer under this Agreement.
1.8 “Effective Date” shall mean the date this Agreement is accepted by Vendor, as noted on the cover page hereof.
1.9 “Fees” shall mean the fees and other expenses set out in Section 6.2.
1.10 “Implementation and Training Services” shall mean the implementation and training services to be provided by Vendor to Customer as described in Schedule C hereto.
1.11 “Laws” shall have the meaning ascribed to it in Section 3.4.
1.12 “Malicious Code” shall have the meaning ascribed to it in Section 9.2.
1.13 “Microsoft” shall mean Microsoft Corporation and its affiliates.
1.14 “Microsoft Agreement” shall mean the agreement respecting Microsoft Products attached hereto as Schedule D.
1.15 “Microsoft Products” shall mean Microsoft online services, which may include Microsoft software, including Microsoft Dynamics 365.
1.16 “Parties” shall mean the Customer and the Vendor and “Party” shall mean either one of them.
1.17 “Permitted Purpose” shall mean to access and use the Software on Customer’s computer systems solely for Customer’s internal customer relationship management purposes, subject to any limitations, restrictions or requirements specified herein.
1.18 “Person” shall mean a natural person, firm, corporation, company, society, foundation, trust, partnership, joint venture, governmental body or agency, or association.
1.19 “Personal Information” shall have the meaning ascribed to it in Section 7.6.
1.20 “Privacy Laws” shall have the meaning ascribed to it in Section 3.4.
1.21 “Renewal Term” shall have the meaning of each successive 12-month period after the “Base Term”.
1.22 “Sales Taxes” shall have the meaning ascribed to it in Section 6.3.
1.23 “Scheduled Downtime” shall mean the time during which Vendor intentionally takes the Software offline for repairs, routine maintenance and to provide Upgrades.
1.24 “SherWeb” shall mean SherWeb Inc. or an affiliate or successor thereof.
1.25 “SherWeb Agreements” shall mean the “Partner Master Service Agreement”, “SherWeb’s Service Level Agreement”, “SherWeb’s No-Spam Policy” and “SherWeb’s Privacy Policy”, as each may be amended from time to time, all of which can be accessed at www.sherweb.com/legal.
1.26 “SherWeb Products” shall mean certain hosted products provided by SherWeb and its third party suppliers, and includes Microsoft Products.
1.27 “Software” shall mean the internet-delivered software known as “Leasepath” developed and provided by Vendor and licensed to Customer hereunder (with such additional functionality, if any, as may be set forth in Schedule A), together with any Upgrades to such Software, and any other software offered by Vendor that constitutes a re-naming, re-packaging, re-bundling or re-licensing of the then-existing functionality of such software.
1.28 “Specifications” shall mean the description of the Software’s functionality as set forth in the Documentation.
1.29 “Term” shall mean the term of this Agreement, as set out in Section 12.1 below.
1.30 “Upgrade” means a revision to or modification of the Software. Such modifications or revisions may: (i) improve upon or repair existing features and operations within the Software, (ii) modify the Software to comply with applicable laws, regulations, industry standards or market practice or (iii) add enhanced functionality to the Software.
1.31 “User” shall mean any Customer employee, consultant, contractor, service provider or agent who is authorized by the Customer’s system administrator to access and use the Software for Customer’s internal business purposes with a unique username and password.
1.32 “Vendor Supplier Agreements” shall mean the Microsoft Agreement, the SherWeb Agreements, and such other agreements relating to Vendor Supplier Products as may be set out in Schedule B hereto.
1.33 “Vendor Supplier Products” shall mean the products set out in Schedule B hereto, and which shall include SherWeb Products and Microsoft Products.
1.34 “Vendor Suppliers” shall mean the suppliers to Vendor of the Vendor Supplier Products.
2. Technical Terms.
2.1 Each term and abbreviation which has a commonly accepted technical or trade meaning is used in this Agreement in accordance with such recognized meaning.
3. Leasepath License.
3.1 License Grant. Subject to the terms, conditions and restrictions of this Agreement, including the payment of all applicable Fees, Vendor hereby grants Customer and each User, during the term, a limited revocable, non-exclusive, non-transferable (except in connection with a permitted assignment of this Agreement), non-sublicenseable right and license to access and use the Software for the Permitted Purpose and use and copy the Documentation. Except for the limited right to access and use the Software and the Documentation granted herein, no other right, title or interest in the intellectual property rights or technology of Vendor is granted and all such rights are hereby expressly reserved.
3.2 Restrictions on Use. Except as otherwise permitted by this Agreement, Customer’s access and use of the Software is subject to the following restrictions and limitations: (i) Customer shall limit access to the Software to the Users expressly permitted pursuant to this Agreement; and (ii) Customer shall not, and shall ensure that the Users do not: (A) distribute, rent, lease or sublicense the Software or Documentation; (B) adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part; (C) disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software; (D) transfer, sell, assign, or otherwise convey the Software to any party except as may be otherwise expressly provided for herein; or (E) alter any proprietary notices appearing in the Software.
3.3 Customer Responsibilities. Customer is solely responsible for (i) ensuring that devices used to access the Software meet the system requirements provided by Vendor to Customer in advance of the Implementation and Training Services, (ii) monitoring and controlling the activity of each User, (iii) ensuring User compliance with this Agreement, (iv) ensuring that there is no unauthorized access to the Software and notifying Vendor promptly of any such access of which Customer becomes aware, (v) the reliability, accuracy, quality, integrity and legality of all Customer Data and the means by which Customer acquires Customer Data and (vi) ensuring that the use of the Software is in compliance with all applicable laws and regulations. Customer shall be solely responsible and liable for the acts and omissions of each User using the Software.
3.4 Compliance with Laws. Customer shall comply with all laws, statutes, codes, treaties, ordinances, orders, decrees, rules, regulations and municipal by-laws, judicial, administrative, ministerial, departmental or regulatory judgments, orders, decisions, rulings or awards of any governmental authority, policies, guidelines and protocols (“Laws”), including any Laws governing the protection of personal information including obtaining, storing and disclosing credit reports (“Privacy Laws”).
3.5 Support. At no additional charge and for the term of this agreement Vendor will provide reasonable support via email at support@leasepath.com during Vendor normal business hours except weekends and applicable public holidays. Vendor will respond to support emails received within 1 business day. Reasonable support is limited to address Software errors, defects, or implementation issues or questions. The intent of Support is not to address use and operations questions and such will only be addressed at the sole discretion of the Vendor. Software use and operations questions and learning can be addressed in Software training supplied separately by the Vendor or its partners.
3.6 Costs & Expenses. Except as expressly provided for herein, all costs and expenses incurred by Customer in its installation, operation and use of the Software shall be borne solely by Customer. In the event that Customer requests that Vendor provide Customer with any assistance or services, including customization services, or training in connection with Customer’s use of the Software beyond the Implementation and Training Services set out in Schedule C, any such assistance or services or training will be provided in Vendor’s sole discretion at extra charge to, and paid for by, Customer.
3.7 Upgrades. Upgrades are provided to Customer at no additional fee, including all Documentation describing the purpose and function of the Upgrades. Customer acknowledges that Upgrades shall be applied to the Software by Vendor as such Upgrades are developed and released to Vendor’s general user base. Vendor reserves the sole and exclusive right to determine how and when to develop and apply any Upgrades. Vendor retains the sole and exclusive discretion to provide new functionality as an Upgrade to existing Software or as separate, stand-alone Software.
3.8 Unique Authentication. Access to and use of the Software is restricted to Customer’s authorized Users only. Customer shall be responsible to ensure all Customer Users maintain the security of any password, username, or other form of authentication involved in obtaining access to the Software. Usernames and passwords must be uniquely assigned to a specific individual and may not be shared by multiple individuals at any one time or transferred.
4. Vendor Supplier Products and Services.
4.1 Hosting of Software. Vendor will make the Software available through Microsoft Dynamics 365® hosted by a Vendor Supplier through the standard Leasepath portal upon installation of a Vendor-supplied licence key. Customer acknowledges and agrees that in order to access and use the Software, the Customer will be required to have the rights to use certain Microsoft Products, including Microsoft Dynamics 365. Vendor will act as the Microsoft certified partner to implement, develop and test Microsoft Dynamics 365 including cutover support, in accordance with Schedule C.
4.2 Terms Applicable to Vendor Supplier Products. The Customer may acquire the rights to use certain Vendor Supplier Products from Vendor on and subject to the terms of this Agreement. If the Customer acquires the rights to use Vendor Supplier Products from the Vendor, the Customer agrees that its rights to use such Vendor Supplier Products as set forth in Schedule B are only granted to Customer by Vendor in accordance with the Customer’s agreement: (i) that such Vendor Supplier Products will be provided by the Vendor and Vendor Suppliers and the use of such products may involve the use of other Vendor Supplier Products; (ii) to be bound by and comply with the terms of the applicable Vendor Supplier Agreements with Vendor Suppliers; (iii) that the renewal of any term for which the Vendor Supplier Products were purchased will require the Customer’s agreement to be bound by the terms of the then current applicable Vendor Supplier Agreements as may be published by the Vendor Suppliers from time to time; (iv) to pay all applicable Fees in connection with the purchased Vendor Supplier Products as set forth in this Agreement; and (v) not to reverse engineer, decompile or disassemble any Vendor Supplier Products.
4.3 Agreements Governing Vendor Supplier Products. If the Customer acquires the rights to use any Vendor Supplier Products from the Vendor pursuant to this Agreement, the Customer’s rights and obligations with respect to the post-cutover operation of such Vendor Supplier Products and, to the extent applicable, any other Vendor Supplier Products will be governed exclusively by, and be limited to, the terms and conditions set forth in the Vendor Supplier Agreements. If the Customer otherwise has the rights to use any Vendor Supplier Products, the Customer’s rights and obligations with respect to the post-cutover operation of such Vendor Supplier Products required to access and use the Software will be governed exclusively by, and be limited to, the terms and conditions of the agreement between the applicable Vendor Suppliers (and/or the applicable Vendor Supplier Cloud Solution Provider from which Customer acquired such use rights) and the Customer pursuant to which such rights were granted. In each case, Customer agrees that a Vendor Supplier, or the applicable Vendor Supplier Cloud Solution Provider, as the case may be, and not Vendor, shall have full responsibility for providing the applicable Vendor Supplier Products.
4.4 Support for Vendor Supplier Products. At no additional charge SherWeb will provide support to Customer in connection with Customer’s use of Vendor Supplier Products in accordance with the applicable SherWeb Agreements. SherWeb’s current technical support standard is 24/7 phone, chat and email support.
5. Implementation and Training Services.
5.1 Professional Services. Vendor will provide Customer with the Implementation and Training Services as set forth in Schedule C or as otherwise agreed to by Vendor and Customer. The parties may from time to time choose to define a set of additional deliverables by written amendment to Schedule C. Vendor will use its reasonable efforts to provide such deliverables, but will not be obligated to provide Implementation and Training Services beyond the services set forth in Schedule C.
5.2 Resources. Vendor will provide such resources and utilize such employees and/or consultants as it deems necessary to perform the Implementation and Training Services. Customer agrees to furnish Vendor with adequate technical assistance, network access, materials, and an environment suitable for Vendor to be able to perform the Implementation and Training Services. Customer further agrees to provide Vendor with the Technology owned or controlled by Customer as Vendor reasonably requires to perform the Implementation and Training Services.
5.3 Cooperation. Customer and Vendor agree to cooperate in good faith to achieve completion of the Implementation and Training Services in a timely and professional manner. Vendor shall bear no liability or otherwise be responsible for delays in the provision of Implementation and Training Services or any portion thereof occasioned by Customer’s failure to timely complete a Customer task or adhere to a Customer schedule.
6. Payment for Software.
6.1 Fees. The license Fees for all Software and, to the extent applicable, Vendor Supplier Products are billed in advance for each period indicated on the face page of this Agreement, by email based on the maximum number of Users authorized to access the Software and, to the extent applicable, the Vendor Supplier Products. Customer shall limit the number of Users: (a) accessing the Software at any time to the number of Users specified on Schedule A to this Agreement, and, (b) utilizing the Vendor Supplier Products, to the extent applicable, at any time to the number of Users specified on Schedule B to this Agreement. Customer may increase the number of Users permitted to access the Software or, to the extent applicable, to utilize the Vendor Supplier Products only by purchasing additional seats from Vendor (provided the Customer may increase the number of Users permitted to utilize Vendor Supplier Products by otherwise acquiring additional rights required for such Users to utilize Vendor Supplier Products). Any additional licensed seats purchased during the Term of this Agreement (the “Additional Seats”) shall be for the remainder of the unexpired Term, subject to the earlier termination of this Agreement in accordance with Section 12.1. An eighteen percent (18%) per annum interest fee will be charged on all amounts not paid within thirty (30) days of their due date; if such amounts remain unpaid, Vendor shall be entitled to suspend access to the Software and, to the extent applicable, Vendor Supplier Products without notice, until full payment has been received.
6.2 Invoicing and Payment. Customer agrees to pay directly to Vendor those fees for the Software license, the Vendor Supplier Products (if applicable) and the Implementation and Training Services as set forth in Schedules A, B and C of this Agreement plus, if applicable, fees agreed to in writing for Additional Seats (collectively, the “Fees”). Except as provided herein, all payment obligations are non-cancellable and all amounts paid are non-refundable. All Fees are payable by pre-authorized bank debit.
6.3 Tax. The Fees exclude all applicable sales, goods and services, harmonized, value added, use, or other taxes, levies and charges chargeable by or payable to any level of taxation authority in connection with this Agreement (collectively the “Sales Taxes”) and the parties agree that Customer shall be liable for all Sales Taxes payable in connection with the transactions contemplated in this Agreement.
7. Confidentiality and Proprietary Rights.
7.1 Confidential Information. “Confidential Information” shall mean all documents, information, technology and data disclosed or furnished in any connection with this Agreement by one Party to the other Party prior to or after the date of this Agreement, directly or indirectly, whether in oral, written, graphic, video, machine-readable or other form that is either marked or identified (in writing or orally) as being confidential or proprietary or that the receiving Party can reasonably conclude or ought to know is confidential or proprietary to the other Party. Customer acknowledges that the Software, the Documentation and all related business, technical and product information (inclusive of all pricing information, trade secrets, ideas, concepts, processes, procedures and know-how contained therein) disclosed by Vendor in any connection with this Agreement, as well as the existence and terms of this Agreement, is the Confidential Information of Vendor. Vendor acknowledges that the Customer Data, including Personal Information, is the Confidential Information of Customer. Except as and to the extent expressly authorized hereunder, Customer may use the Confidential Information only to the extent required for its internal business purposes in connection with its operation and use of the Software as permitted by this Agreement. Vendor shall be permitted to use the Customer Confidential Information to the extent necessary for the provision of services hereunder and its activities related to the license of the Software thereto. Each Party shall hold the other Party’s Confidential Information in confidence and shall protect the Confidential Information from harm, loss, theft, reproduction and unauthorized access and shall ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any other person except as provided in this Agreement, without the other Party’s prior written approval. Notwithstanding the foregoing, a Party shall be permitted to disclose relevant aspects of the other Party’s Confidential Information to its officers, directors, employees, agents, professional advisors, and in the case of Vendor, its subcontractors and Vendor Suppliers, to the extent that such disclosure is reasonably necessary for the performance of its duties and obligations or the exercise of any rights or privileges granted under this Agreement; provided however, that prior to such disclosure such disclosing Party shall inform such persons and parties of the confidential nature of the Confidential Information. A Party shall be fully responsible for ensuring that any such persons to whom it discloses the other Party’s Confidential Information comply with the confidentiality obligations contained in this Agreement and shall be liable for any breach of this Agreement by such persons. A Party may disclose the Confidential Information of the other Party that: (a) is prior to furnishing or thereafter becomes known to the public without fault or breach of such Party; and (b) it obtains from a third party without restriction on the disclosure and without breach by such third party of a non-disclosure obligation.
7.2 Ownership of Software. Customer acknowledges and agrees that all right, title and interest in and to the Documentation and Software (including all intellectual property rights therein, including all copyright) is, and shall be, owned solely and exclusively by Vendor and/or its third party licensors. Nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to Customer any title, rights or interest in any intellectual property, including copyrights, methodologies, ideas and concepts, in or to the Software other than the license or other rights specifically and expressly granted herein.
7.3 Ownership of Vendor Supplier Products. Customer acknowledges and agrees that all right, title and interest in and to the Vendor Supplier Products (including all intellectual property rights therein, including all copyright) is, and shall be, owned solely and exclusively by the Vendor Suppliers and/or their third party licensors. Nothing in this Agreement shall, or shall be deemed or construed to, assign, transfer or convey to Customer any title, rights or interest in any intellectual property, including copyrights, methodologies, ideas and concepts, in or to the Vendor Supplier Products other than rights specifically and expressly granted to the Customer hereunder or pursuant to the Vendor Supplier Agreements.
7.4 Relief. Customer acknowledges and agrees that damages may be an inadequate remedy for a breach of Section 7.1 (Confidential Information) or 7.2 (Ownership of Software) or the provisions of this Agreement relating to Customer’s access to and use of the Software and agrees that such breach shall constitute irreparable harm to Vendor. Customer agrees not to contest or object to an application for equitable relief by Vendor in such circumstances and waives any and all immunities from injunctive relief to which it may be entitled. Any such relief or remedy shall not be exclusive, but shall be in addition to all other available legal or equitable remedies. Customer agrees that the provisions of this section are fair and reasonable in the commercial circumstances of this Agreement, and that Vendor would not have entered into this Agreement but for the provisions of this section.
7.5 Ownership of Data. Customer will have sole and exclusive ownership of all right, title, and interest in and to the Customer Data. Customer hereby grants to Vendor the non-exclusive right during the Term to access Customer Data solely to the extent necessary for the performance of its obligations under this Agreement.
7.6 Personal Information. Customer agrees that in using the Software it shall comply at all times with all Privacy Laws (as defined herein), including in connection with its collection, use and disclosure of personal information as defined by Privacy Laws (“Personal Information”). Customer covenants that (a) any Personal Information in the Customer Data will be collected in compliance with Privacy Laws and any of Customer’s published privacy policies and information collection and use policies (the “Customer Policies”); (b) Customer will have the right to disclose the Customer Data and any Personal Information contained therein to Vendor without violating Privacy Laws or any Customer Policies, and (c) Customer will have the right to use, and to authorize Vendor to use on Customer’s behalf, the Personal Information in the Customer Data in connection with Customer’s use of the Software without violating Privacy Laws or any Customer Policies. Customer will indemnify Vendor from all liability arising from a breach of this Section 7.6.
7.7 Users’ Information. As and to the extent required by law, Customer shall notify the Users and other persons whose Personal Information is incorporated in the Customer Data that their data may be processed for the purpose of disclosing it to law enforcement or other governmental authorities as directed by Vendor, and shall obtain such persons’ consent to the same.
7.8 Publicity. Each Party consents to the use and public disclosure of the legal name and logo of the other Party solely to identify such other Party as a customer or software provider, as applicable.
7.9 Information Provided to Vendor Suppliers. The Customer acknowledges that by using Vendor Supplier Products, Customer may provide Customer Data (including Personal Information) to Vendor Suppliers, which shall be treated by the Vendor Suppliers in accordance with the terms of the applicable Vendor Supplier Agreements by which Customer has agreed to be bound if the Customer purchased the rights to use Vendor Supplier Products from Vendor under this Agreement. In no event shall the Vendor be responsible for the treatment by Vendor Suppliers of such Customer Data provided by Customer to Vendor Suppliers.
8. Indemnification.
8.1 By Vendor. Vendor shall indemnify and hold Customer harmless from any final award of damages or settlement amount (including reasonable legal fees) arising out of or based upon a third party claim that the Software infringes on or misappropriates any third party intellectual property right (a “Claim”). If Vendor anticipates such a Claim or if such Claim has been made on the Software, Vendor will, at its option and expense, (a) obtain for Customer the right to continue to use the Software; or (b) make such replacements or modifications to the Software in each case as are necessary to permit Customer to continue use of the Software without infringement and in compliance with this Agreement. If Vendor is unable, despite reasonable efforts, to effect any of these options within sixty (60) days of notice of the Claim, Customer may then terminate this Agreement by notifying Vendor in writing at least thirty (30) days before the effective date of such termination; the foregoing describes Vendor’s total liability under this Section 8.1.
8.2 Limitations. Vendor shall have no obligation under this Section 8 for any Claim which results from or arises in connection with: (i) any use of the Software in combination with third party software or third party hardware or other technology not provided by Vendor to the extent such infringement would not have occurred but for such combination; (ii) any use of the Software which exceeds the scope of the license granted to Customer; (iii) use of the Software not in compliance with applicable Laws; or (iv) use of Vendor Supplier Products. Vendor shall have no liability under this Section 8 for increased damages for intentional or willful infringement by Customer (or any legal fees associated with such intentional or willful infringement) if the basis for the increased damages award, as determined by the court, is the result of the conduct, acts or omissions of Customer.
8.3 By Customer. Customer hereby agrees to fully indemnify and hold harmless, and, upon Vendor’s request, defend, Vendor and its officers, directors, employees and agents harmless from and against all claims, damages and losses of any type, expenses (including reasonable legal fees), actions, demands, liabilities, settlements, or judgments that result from or arise out of, or which such persons may suffer or incur as a result of or arising out of or in any way connected with (i) Customer’s use of the Software or (ii) Customer’s use of Vendor Supplier Products or breach of any Vendor Supplier Agreement.
8.4 Process. The foregoing indemnity obligations are conditioned on the indemnified Party notifying the indemnifying Party promptly in writing of any actual or threatened Claim, the indemnified Party giving the indemnifying Party sole control of the defense thereof and any related settlement negotiations, and the indemnified Party cooperating and, at the indemnifying Party’s request and expense, assisting in such defense.
9. Warranties.
9.1 Authority. Each Party represents and warrants to the other that it has taken all requisite corporate and other action to approve the execution, delivery and performance of this Agreement and agrees to produce reasonable evidence of such action upon request.
9.2 No Disabling Devices. Vendor warrants that it has taken all commercially reasonable steps to ensure that the Software does not and will not contain any computer viruses, worms, Trojan horses, time bombs, time locks, trap door devices or any other similar harmful, malicious or hidden procedures, routines or mechanisms (“Malicious Code”). The foregoing warranty does not include, and Vendor shall not be liable for, any Malicious Code (i) uploaded or sent by Customer to the Software; or (ii) contained within any Customer Data; or (iii) otherwise originating with Customer.
9.3 Disclaimer of Warranties. EXCEPT AS PROVIDED IN THIS SECTION 9, VENDOR MAKES NO REPRESENTATION OR WARRANTY, EXPRESS, STATUTORY OR IMPLIED, AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY OR ACCURACY OF THE SOFTWARE, VENDOR SUPPLIER PRODUCTS OR ANY RELATED PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT. WITHOUT LIMITING THE FOREGOING, VENDOR MAKES NO WARRANTY AS TO MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
10. Limitation of Liability.
10.1 This Section 10 sets out the entire financial liability of Vendor (including any liability for the acts or omissions of its employees, agents and sub-contractors) to Customer in respect of: (i) any breach of this Agreement; (ii) any use made by Customer of the Software; and (iii) any representation, statement or tortious act or omission (including negligence) arising under or in connection with this Agreement.
10.2 Except as expressly and specifically provided in this Agreement, Customer assumes sole responsibility for results obtained from the use of the Software by Customer, and for conclusions drawn from such use. Vendor shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to Vendor by Customer in connection with the Software, or any actions taken by Vendor at Customer's direction.
10.3 SUBJECT TO SECTION 10.4, EXCEPT FOR A PARTY’S LIABILITY UNDER SECTIONS 6.1 (FEES), 7 (CONFIDENTIALITY AND PROPRIETARY RIGHTS) AND 8 (INDEMNIFICATION), IN NO EVENT SHALL EITHER PARTY'S TOTAL LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT ACTUALLY PAID BY AND/OR DUE FROM CUSTOMER HEREUNDER IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM.
10.4 Nothing in this Agreement excludes the liability of the Vendor for death or personal injury caused by the Vendor’s negligence; or for fraud or fraudulent misrepresentation.
10.5 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS (WHETHER DIRECT OR INDIRECT), LOSS OF USE, COSTS OF COVER, OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT, WARRANTY OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE BREACHING PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
10.6 TO THE EXTENT PERMITTED BY APPLICABLE LAW, ANY LIABILITY OF VENDOR SUPPLIERS OR THEIR SUPPLIERS ARISING FROM THE VENDOR SUPPLIER PRODUCTS FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT OR CONSEQUENTIAL, IS HEREBY DISCLAIMED.
10.7 Nothing in this Agreement shall be taken as in any way reducing or affecting a general duty to mitigate loss suffered by a Party.
11. Insurance.
11.1 Vendor shall maintain, through the Term of this Agreement, at its own expense, the appropriate levels of insurance coverage for all Software being provided and comply with all insurance requirements. Such insurance shall be written with reputable and financially responsible insurance carriers. Certificates (and any other appropriate documentation) evidencing such policies shall be furnished to Customer, upon request.
12. Term and Termination.
12.1 Term of Agreement. This Agreement commences on the Effective Date and will continue thereafter for a period of months noted on the face page to this Agreement, unless terminated earlier in accordance with this Section 12 (the “Base Term”). Unless either Party provides written notice to the other at least ninety (90) days prior to the end of the Term, or any Renewal Term, this Agreement will automatically renew for another Renewal Term on the same terms and conditions existing upon the date of renewal. Each Renewal Term, together with the Base Term, is referred to herein as the “Term.” Notwithstanding the foregoing, this Agreement may be terminated prior to the end of the Term by either Party if the other Party breaches any material provision of this Agreement and such breach is not reasonably cured or corrected within ten (10) business days after receipt by the breaching Party of written notice, or by Vendor, if (i) Customer fails to make any payment due under this Agreement, including its payment obligations under Section 6 (Payment for Software) hereunder, and such breach is not cured within five (5) business days after receipt of written notice, or (ii) if Customer fails to comply with the terms of any Vendor Supplier Agreement.
12.2 Effect of Termination. Upon termination of this Agreement for any reason:
12.2.1 All licenses with respect to the Software and Documentation granted under this Agreement shall immediately terminate;
12.2.2 If the Customer has acquired rights to use Vendor Supplier Products from the Vendor pursuant to this Agreement, then:
12.2.2.1 if the Parties agree so in writing, the Customer will retain the rights to use Vendor Supplier Products so acquired for the remainder of the Term, provided that during such period: (i) the Customer agrees to continue to be bound by Sections 4.2 (Terms Applicable to Vendor Supplier Products) and 4.3 (Agreements Governing Vendor Supplier Products) of this Agreement, which shall then survive the termination of this Agreement together with all other terms that are necessary to give effect to such surviving terms; and (ii) the Customer agrees to continue to pay all Fees relating to the use of Vendor Supplier Products in accordance with Section 6 (Payment for Software) of this Agreement and Schedule A hereto, and the Customer further acknowledges that the terms of Section 8 (Indemnification) will continue to apply with respect to the Customer’s use of any Vendor Supplier Products or breach of any Vendor Supplier Agreement during such period; or
12.2.2.2 all rights with respect to use of Vendor Supplier Products acquired by Customer pursuant to this Agreement shall terminate;
12.2.3 As Vendor does not retain any Customer Data in its systems or otherwise in its possession or under its control during the Term of this Agreement, the Customer shall be solely responsible for exporting Customer Data from Microsoft Dynamics 365 as hosted by a Vendor Supplier prior to the effective time of termination. In the event that Customer requests that Vendor provide Customer with any assistance or services in connection with the exporting of Customer Data from Microsoft Dynamics 365, any such assistance or services will be provided in Vendor’s sole discretion at extra charge to, and paid for by, Customer;
12.2.4 The Customer shall pay any Fees accrued or payable to Vendor prior to the effective date of termination;
12.2.5 The accrued rights of the Parties as at termination, or the continuation after termination of any provision expressly stated to survive or implicitly surviving termination, shall not be affected or prejudiced; and
12.2.6 If the Customer terminates this Agreement for cause per Section 12.1 (Term of Agreement), the Customer shall be entitled to a refund of the pro-rata portion of any pre-paid license Fees paid to Vendor relating to the time period following the effective date of such termination for which Software has not been provided.
13. General Provisions.
13.1 Interpretation. In this Agreement, unless there is something in the subject matter or context inconsistent therewith, (i) words in the singular number include the plural and are to be construed as if the plural had been used and vice versa, (ii) words importing the use of any gender include all genders where the context so requires, and the rest of the sentence including such words is to be construed as if the necessary grammatical changes have been made, and (iii) the words “including” and “includes” mean “including without limitation” and “includes without limitation”, respectively.
13.2 Sub-Contracting and Assignment. Vendor may enter into any sub-contract with any Person for the performance of any part of this Agreement, provided that the provisions of this clause shall not relieve Vendor from its obligations for the performance of any part of this Agreement. Subject to the foregoing, Customer may not assign all or any part of this Agreement without the prior written consent of Vendor. Vendor may assign this Agreement without the consent of Customer at any time. This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of the Parties, and their respective successors and permitted assigns.
13.3 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and each Party hereby irrevocably submits to the exclusive jurisdiction of the courts of the Province of Ontario. This Agreement shall not be governed by the United Nations Convention on the International Sale of Goods, the application of which is expressly excluded.
13.4 Alternative Dispute Resolution. Before either Party initiates any proceeding, the matter in controversy will first be referred to the chief information officers or other appropriate officers of the Parties. Such officers shall take all reasonable steps to attempt to resolve the matter within four (4) weeks of the date of referral.
13.5 Entire Agreement. This Agreement, together with the Schedules hereto, constitutes the entire agreement between the Parties regarding the subject matter of this Agreement, and supersedes all prior or contemporaneous oral or written agreements, representations and negotiations. In the event of any conflict between the terms of this Agreement and any Schedule, this Agreement shall govern.
13.6 Third Party Rights. Other than the Vendor Suppliers, who are intended third party beneficiaries of this Agreement with the right to enforce the provisions of this Agreement and to verify Customer’s compliance herewith, the Parties and, to the extent applicable, their successors and permitted assigns, this Agreement does not confer any rights on any Person or party. In the event that a Vendor Supplier is barred from enforcing this Agreement by reason of the third party beneficiary doctrine, Vendor and Customer agree that Vendor shall act as trustee of the Vendor Suppliers for the limited purpose of holding in trust for the Vendor Suppliers the rights and covenants in favour of such Vendor Suppliers contained in this Agreement and any of the agreements incorporated herein by reference (including the Vendor Supplier Agreements). Accordingly, the Customer agrees that Vendor Suppliers may enforce such rights and covenants in their own capacity (without being required to add Vendor to any proceedings for such enforcement).
13.7 Severability. If any provision of this Agreement is determined by a court of competent jurisdiction to be illegal or unenforceable, its invalidity shall not affect the other provisions of this Agreement that can be given effect without the invalid provision. If any provision of this Agreement does not comply with any law, ordinance or regulation, such provision, to the extent possible, shall be interpreted in such a manner so as to comply with such law, ordinance or regulation, or, if such interpretation is not possible, it shall be struck and the Agreement shall be construed in accordance with the remaining provisions of the Agreement.
13.8 Notices. Except as otherwise provided herein, all notices, including notices of address change, required to be sent hereunder shall be in writing and shall be deemed to have been give upon: (1) personal delivery, (ii) the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email; provided that facsimile and e-mail shall not be sufficient for notices of termination or an indemnifiable claim. Notices to Customer or Vendor shall be sent to the address set out on the cover page of this Agreement.
13.9 No Partnership. The Parties are independent contractors. Nothing in this Agreement shall be construed to create a partnership, joint venture or agency relationship between the Parties. Neither Party shall have any right or authority to assume or create any obligation of any kind expressed or implied in the name of or on behalf of the other Party.
13.10 Waiver. The failure of either of the Parties to exercise or enforce any right conferred upon it by this Agreement shall not be deemed to be a waiver of that right or operate so as to bar its exercise or enforcement at any time or times thereafter.
13.11 Amendments. Any modification of this Agreement must be in writing and signed by an authorized representative of Vendor and Customer. Notwithstanding the foregoing, where the Customer purchases Additional Seats during the Term, the Vendor may and will forthwith amend Schedule A by providing a written notice to the Customer to that effect attaching a restated Schedule A updated to reflect such Additional Seats and the Fees payable with respect thereto. The restated Schedule A, as so updated, shall be incorporated by reference into this agreement and replace in whole the Schedule A attached hereto.
13.12 Survival. Sections 6 (Payment for Software) (until satisfied or as provided in Section 12.2.2.1), 7 (Confidentiality and Proprietary Rights), 8 (Indemnification), 10 (Limitation of Liability), 12 (Term and Termination) and 13 (General Provisions) and all other terms that are necessary to give effect to such surviving terms, shall survive termination or expiration of this Agreement.
13.13 Counterparts; Facsimile. This Agreement may be executed in any number of counterparts, each of which when executed and delivered shall constitute an original of this Agreement, but all the counterparts shall together constitute the same agreement. No counterpart shall be effective until each Party has executed at least one counterpart. Signatures submitted by facsimile and PDF shall be binding to the same extent as original signatures.