MASTER SERVICES AGREEMENT
This Master Services Agreement is between eCompliance Management Solutions Inc. (“eCompliance”) and Client as of the last date on which both Parties have signed the applicable Order Form (“Effective Date”), and governs Client’s acquisition and use of eCompliance’s cloud-based subscription services and certain eCompliance professional services, in each case as specified in one or more Order Forms. eCompliance reserves the right, from time to time, to update the Agreement in its sole discretion. If eCompliance does so, it will post the modified Agreement at https://www.ecompliance.com/msa/ in accordance with this terms of this Agreement.
The Parties agree as follows:
1.1.Definitions. Capitalized terms not expressly defined in this Agreement have the meaning given to them in ScheduleA.
1.2.Order Forms; Affiliates. All orders for the Services by Client shall be evidenced by an Order Form. Each Order Form is incorporated into this Agreement by this reference. By entering into an Order Form, an Affiliate of Client agrees to be bound by the terms of this Agreement as if it were an original party hereto. Client shall be responsible for any breach of this Agreement by any such Affiliate as if the breach were by Client. To the extent there is any conflict between the terms of this Agreement and the terms of any Order Form, the terms of this Agreement shall control.
1.3.Schedules. The following schedules are attached to and form part of this Agreement:
Schedule “A” –Definitions
Schedule “B” –Acceptable Use Policy
Schedule “C” –Additional Professional Services Terms and Conditions
2.TERM; SUBSCRIPTION PERIODS
2.1.Term of Agreement.The term of this Agreement commences on the Effective Date and continues until the expiry or termination of all Order Forms hereunder, unless this Agreement is terminated earlier in accordance with its terms (“Term”).
2.2.Subscription Periods; Automatic Renewal. Except for COVID-19 Trials, Subscription Periods for subscription Cloud Services will automatically renew for successive 1-year periods (each, a “Renewal Subscription Period”), unless either Party delivers to the other Party written notice of non-renewal at least 45 days prior to the expiration of the then-current period. Notice of non-renewal may be sent to eCompliance by email to email@example.com.
2.3.COVID-19 Trials. The period of a COVID-19 Trial lasts for a 3-month period beginning on the date of the Order Form for the Covid-19 Trial.
3.1.Cloud Services and Support.eCompliance will make the Cloud Services specified in an Order Form available during the applicable Subscription Period or during the applicable Covid-19 Trial, subject to the terms and conditions of this Agreement and such Order Form. For certainty, eCompliance will provide its standard Support to accompany the Cloud Services.The Cloud Services and Support will only be made available for use by Client upon eCompliance’s receipt of the applicable Cloud Services Fees or for $0 consideration in the case of COVID-19 Trials.
3.2.Service Levels; Support.Except for any Covid-19 Trial, the Cloud Services and Support will be made available to Client in accordance with the Service Level Agreement, available at http://go.ecompliance.com/Web-Service_Level_Agreement.html(“SLA”). eCompliance may revise the SLA from time to time, with changes effective upon posting of the revised policy at http://go.ecompliance.com/Web-Service_Level_Agreement.html. For certainty, the SLA is hereby incorporated into and forms part of this Agreement. The remedies listed in the SLA are Client’s sole remedy for any failure of the Cloud Services or Support.
3.3.Professional Services.eCompliance will provide to Client the Professional Services specified in an Order Form, subject to the terms and conditions of any such Order Form and this Agreement (including the Additional Professional Services Terms and Conditions attached as Schedule C). Unless otherwise agreed, all Professional Services are performed remotely. Onboarding/set up services cycle target is 90 days to completion.
3.4.APIs. eCompliance may make various APIs available as part of the Cloud Services. Client acknowledges and agrees that:
(a) the APIs may only be accessed and written to on a non-exclusive, non-transferable, non-assignable basis by Client;
(b) Client is responsible for making and maintaining all necessary arrangements to access, use and interface with APIs in accordance with such specifications and restrictions as eCompliance may stipulate from time-to-time;
(c) Client shall, at its own cost, take such steps as are required to integrate any modifications eCompliance makes to APIs provided by eCompliance to Client on reasonable notice;
(d) eCompliance may restrict Client access to the APIs if eCompliance reasonably determines that the volume of queries originating from Client is unduly burdening the APIs;
(e) the APIs are made available solely to support use and receipt of the Services, and eCompliance has no liability with respect to any uses of the APIs; and
(f) certain of the APIs may include third-party content that is subject to open source license terms that may expand or limit Client’s rights to use such content.
3.5.Service Control.As between the Parties, eCompliance has and will retain sole control over the operation, maintenance and management of the Services and eCompliance Materials, including the selection, deployment, replacement, and Modification thereof. eCompliance may charge fees for new products, modules, and services. For clarity, Client will not be charged for any such new products, modules or services unless Client has ordered any of them pursuant to an Order Form.
3.6.Discontinuance.eCompliance reserves, without liability, the right at any time to discontinue, temporarily or permanently, the Services (or any part thereof) and will provide Client with no less than forty-five (45) days’ notice of any such expected discontinuances by eCompliance. If the entire Services are discontinued without cause, Client’s sole and exclusive remedy is to receive a refund equal to the prorated amount of unused Services. For any Covid-19 Trials, Services (or any part thereof) can be discontinued at any time.
3.7.Available Third-Party Products & Services. eCompliance or third parties may from time to time make available to Client, for acquisition by Client, certain third-party products or services (“Available Third-Party Tools”) either through the Cloud Services, by way of hyperlinks, or externally (e.g. training). Any acquisition by Client of any such Available Third-Party Tools, and any exchange of data between Client and any third-party provider, is solely between Client and the applicable third-party provider. eCompliance does not warrant or support Available Third-Party Tools, whether or not they are designated by eCompliance as “certified”, part of an authorized configuration or otherwise.
4.GENERAL TERMS AND CONDITIONS RE: THE SERVICES
4.1.Scope of Use; No Additional Rights. Client and its Users shall use Services, APIs, and Available Third-Party Tools, for internal business purposes only. Such internal business purposes do not include use by any parent, subsidiary, or Affiliate of Client, or any other third party, and Client shall not permit any such use unless otherwise expressly specified in an Order Form. For certainty, only Client and its Users shall be entitled to use the Services. To the extent that an Order Form restricts use of the Services to:
(i) a specified number of User seats, then Client may not give access to or use of the Services to more than such specified number of seats; and/or
(ii) specified permission levels or specified modules, then the Services may not be used by more than the specified number of Users at that specific permission level or for the specific modules.
4.2.GeneralResponsibility re: Use; Acceptable Use Policy; Access Methods.Client shall be responsible for each Users’ compliance with, and breach of, this Agreement, including the Acceptable Use Policy attached as Schedule B. For certainty, Client shall be responsible for any use of the Services through Client Systems, any User’s software, hardware or mobile devices (e.g. via eCompliance mobile applications installed on User hardware or a mobile device) (“User Devices”), or any Access Methods, whether by Users or otherwise. Client agrees that it is responsible for protecting the security and integrity of the User Devices and Access Methods.
4.3.Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by Sections 4.1 or 4.2, then Client shall, and shall cause its Users to, immediately:
(a) take all reasonable and lawful measures that are necessary to stop the activity or threatened activity and to mitigate its effects; and
(b) notify eCompliance of any such actual or threatened activity.
4.4.Client Systems; Access. Client has and will retain sole control over the operation, maintenance and management of, and all use of, the Client Systems, and sole responsibility for all use and receipt of the Services and eCompliance Materials by any person by or through the Client Systems or any other means controlled by Client or any User, including any information, instructions or materials provided by any of them to the Services or eCompliance, as well as any conclusions, decisions or actions based on their use of the Services or eCompliance Materials. For certainty, Client is responsible for making and maintaining all necessary arrangements to access and use the Services.
4.5.Consents and Laws. Client shall, and shall ensure that its Users shall, be responsible for:
(a) obtaining and maintaining all necessary licences, consents, and permissions necessary for eCompliance, its contractors and agents to perform their obligations under this Agreement and for Client and its Users to use the Services; and
(b) complying with all applicable laws, rules, regulations and guidances regarding its use and receipt of the Services and any eCompliance Materials,including, without limitation, export and privacy laws and regulations.
4.6.Effect of Client Failure. eCompliance is not responsible or liable for any delay or failure of performance caused in whole or in part by Client’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Client Failure”).
5.1.License. Client hereby grants to eCompliance and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit the Client Data for the purpose of providing and making the Services to Client and its Users pursuant to this Agreement. eCompliance may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning Client Data and data derived therefrom) and, during and after the Term of this Agreement, eCompliance may:
(i) use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other eCompliance offerings and
(ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
Client Responsibility. Client has sole responsibility for, and eCompliance disclaims all liability, for (a) any Client Data;
(b) any storage, backup and retrieval of Client Data to the extent not expressly ordered by Client pursuant to an Order Form; and
(c) the condition, completeness, timeliness, legality, reliability, integrity, accuracy and quality of Client Data. Client shall use commercially reasonable encryption, technology and firewalls to keep Client Data secure and confidential. Client agrees that eCompliance does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Client Data. For certainty,
(i) unless backup Services are expressly ordered by Client pursuant to an Order Form, eCompliance is not responsible for and has no liability for Client not storing and backing-up, and Client will store and back-up, all Client Data; and
(ii) eCompliance only backups Client Data to the extent necessary to provide Cloud Services in accordance with the SLA.
5.3.Client Representations and Warranties re: Client Data. Client represents, warrants and covenants to eCompliance that Client owns or otherwise has and will have the necessary rights and consents in and relating to the Client Data so that, as received by eCompliance and as used, processed and transmitted in accordance with this Agreement, they do not and will not infringe, misappropriate or otherwise violate any Intellectual Property Rights, right of confidentiality, right of privacy, right of publicity or other rights of any third party or violate any applicable law, rule or regulation.
5.5.Security. eCompliance will maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of the Cloud Services and Client Data.
6.INTELLECTUAL PROPERTY OWNERSHIP
6.1.Services and eCompliance Materials. As between the Parties, eCompliance or its suppliers retain all ownership and Intellectual Property Rights in and to the Services, eCompliance Materials and Available Third-Party Tools, anything developed or delivered by or on behalf of eCompliance under this Agreement, and any Modifications to any of the foregoing. All rights not expressly granted by eCompliance to Client under this Agreement are reserved. Client shall comply with all reasonable requests made by eCompliance to protect the rights of eCompliance and such third party rights holders in and to the Services, eCompliance Materials and Available Third-Party Tools.
6.2.Client Data. As between the Parties, Client owns all right, title and interest in and to the Client Data.
7.FEES AND PAYMENT
7.1.Fees; Payment; Invoices; Expenses.
(a) Fees; Manner of Payment. Client hereby agrees to pay the Fees for the Services and Available Third Party Tools set out in each Order Form, plus applicable Taxes and expenses. Unless otherwise set-out in an Order Form, all Fees are invoiced and payable in advance by Client. Payment shall be made in the manner set-out in the Order Form (e.g., cheque, credit card, ACH debit, etc.).
(b) Cloud Services Fees. Cloud Services Fees are based on Cloud Services purchased pursuant to an Order Form and not actual usage. Payment obligations are non-cancelable and fees paid are non-refundable.
(c) Professional Services Fees. Professional Services Fees are as set-out in an Order Form. Where the parties agree in an Order Form that Professional Services may be purchased as part of a pre-agreed upon package for Professional Services, then Client acknowledges and agrees that such Fees are non-cancelable and non-refundable after the earlier of
(d) 7.2.Expenses. For Professional Services performed on-site, Client will reimburse eCompliance for eCompliance’s reasonable costs for all expenses incurred in connection with the Professional Services.
Currency. All amounts will be invoiced by eCompliance in U.S. currency, except that Canadian clients based in Canada will be invoiced in Canadian Dollars.
7.3.Late Payment. In the event of payment after the due date, interest shall be payable on the overdue amount(s) at an amount equal to 1% per month of the overdue amounts or the maximum amount permissible under applicable law. Client will be responsible for, and eCompliance entitled to recover from Client, all costs associated with collecting any fees or other amounts due and owing to eCompliance from Client, including but not limited to any legal costs, lawyer’s fees, court costs and collection agency fees.
7.4.Taxes. In addition to the Fees, Client shall pay all Taxes, however designated, in relation to use of the Services. If a certificate of exemption or similar document is to be used in order to exempt Client from that liability, Client must furnish a copy of the certificate to eCompliance prior to commencement of the Term. In the event that Client is prohibited by law from making payments to eCompliance free of deductions or withholdings, Client will pay the additional amounts to eCompliance as may be necessary to ensure that the actual amount received by eCompliance after deduction or withholding and after payment of any additional taxes or charges due as a consequence of the payment of the additional amounts, equals the amount that would have been received by eCompliance if the deductions or withholdings were not required.
7.5.Fee Increases. eCompliance may increase Fees by providing written notice to Client at least 60 calendar days prior to the end of the then-current Subscription Period.
8.1.Confidential Information. “Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated in writing as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Disclosing Party’s Confidential Information does not include information that is
(a) already known to or independently developed by the Receiving Party without access to the Disclosing Party’s Confidential Information;
(b) publicly available through no wrongful act of Receiving Party; or
(c) received by Receiving Party from a third party who was free to disclose it without confidentiality obligations.
8.2.Obligations. Receiving Party hereby agrees that during the Term and at all times thereafter it will not:
(a) disclose Confidential Information of the Disclosing Party to any person, except to its own personnel or affiliates having a “need to know” and that are subject to confidentiality obligations and/or have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Disclosing Party may approve in writing;
(b) use Confidential Information of the Disclosing Party except to exercise its license rights or perform its obligations under this Agreement; or
(c) alter or remove from any Confidential Information of the Disclosing Party any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Receiving Party takes to protect its own Confidential Information of a similar type.
8.3.Exceptions. Notwithstanding Section 8.2, Receiving Party may disclose Disclosing Party’s Confidential Information:
(a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Receiving Party promptly notifies the Disclosing Party in writing of such required disclosure and cooperates with the Disclosing Party to seek an appropriate protective order; or
(b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
8.4.Effect of Expiration and Termination. Upon expiration or termination of this Agreement for any reason, the Receiving Party shall return or destroy all Disclosing Party Confidential Information in its possession or control. Upon Disclosing Party’s request, Receiving Party shall certify to compliance with the previous sentence. Notwithstanding the first sentence of this Section 8.4, Receiving Party may retain the Disclosing Party’s Confidential Information
(i) in tangible form, in its then current state solely to the extent and for so long as required by applicable law, rule or regulation; and
(ii) in electronic form, in its backups, archives and disaster recovery systems until such Disclosing Party Confidential Information is deleted in the ordinary course. All information and materials described in this Section 8.4 will remain subject to all confidentiality requirements of this Agreement.
9.MUTUAL REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
9.1.Mutual Representations and Warranties. Each Party represents and warrants to the other Party that:
(a) it is duly organized, validly existing and in good standing as a corporation or other entity under the laws of the jurisdiction of its incorporation or other organization;
(b) it has the full right, power and authority to enter into this Agreement;
(c) the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
(d) when executed and delivered, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against it in accordance with its terms.
9.2.NO ADVICE. CLIENT ACKNOWLEDGES AND AGREES THAT THE SERVICES ARE SIMPLY A TOOL TO ASSIST CLIENT, THAT ECOMPLIANCE DOES NOT PROVIDE LEGAL, SAFETY OR COMPLIANCE SERVICES, AND THAT CLIENT IS SOLELY RESPONSIBLE FOR CLIENT’S AND ITS USERS’ SAFETY AND COMPLIANCE WITH ALL LAWS, RULES AND REGULATIONS APPLICABLE TO CLIENT AND ITS USERS.
9.3.GENERAL DISCLAIMERS. ECOMPLIANCE DOES NOT WARRANT THAT THE SERVICES, ECOMPLIANCE MATERIALS, OR AVAILABLE THIRD PARTY TOOLS WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES ECOMPLIANCE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF ANY OF THE FOREGOING. THE SERVICES, ECOMPLIANCE MATERIALS, AND AVAILABLE THIRD PARTY TOOLS ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE EXTENT PERMITTED BY APPLICABLE LAW, ECOMPLIANCE HEREBY DISLCAIMS ALL EXPRESS, IMPLIED, COLLATERAL, COMMON LAW, AND STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, CURRENCY, ACCURACY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, ECOMPLIANCE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY AVAILABLE THIRD PARTY TOOLS IS STRICTLY BETWEEN CLIENT AND THE SUPPLIER OF SUCH TOOLS.
10.LIABILITY LIMITATIONS AND EXCLUSIONS
10.1.LIMITATIONS. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY AND ALL CLAIMS EXCEED THE TOTAL OF ALL AMOUNTS PAID BY CLIENT TO ECOMPLIANCE PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. NOTWITHSTANDING ANYTHING TO THE CONTRARTY IN THIS SECTION 10.1, IN NO EVENT WILL ECOMPLIANCE BE LIABLE FOR ANY DIRECT DAMAGES WHATSOEVER IN CONNECTION WITH ANY COVID-19 TRIAL. IN NO EVENT WILL ECOMPLIANCE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
10.2.EXCLUSIONS. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY OF THE FOLLOWING ARISING OUT OF OR CONNECTED TO THIS AGREEMENT:
(A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES;
(B) LOST GOODWILL, SALES, REVENUE, PROFITS, SAVINGS, DATA, USE, OR CONTENT;
(C) BUSINESS INTERRUPTION;
(D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES;
(E) PERSONAL INJURY OR DEATH; OR
(F) PERSONAL OR REAL PROPERTY DAMAGE. NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL ECOMPLIANCE BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM:
10.3.CARVE-OUTS. THE LIMITATIONS ON LIABILITY IN THIS SECTION 10 DO NOT APPLY TO LIABILITY ARISING FROM INDEMNIFICATION OBLIGATIONS HEREUNDER, A PARTY’S FRAUD OR WILLFUL MISCONDUCT, CLIENT’S BREACH OF ITS PAYMENT OR TAX OBLIGATIONS HEREUNDER, OR CLIENT’S BREACH OF SECTION(S) 4.1, 4.2 OR 6.
10.4.APPLICATION. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 10 APPLY TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE (INCLUDING FOR FUNDAMENTAL BREACH, GROSS NEGLIGENCE AND NEGLIGENCE), REGARDLESS OF CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.
10.5.ACKNOWLEDGEMENT. THE PARTIES HAVE FREELY AND OPENLY NEGOTIATED THIS AGREEMENT, INCLUDING THE PRICING, IN THE KNOWLEDGE THAT THE LIABILITY OF THE PARTIES IS TO BE LIMITED IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT.
11.1.eCompliance’s Indemnification Obligation. eCompliance shall, at its expense, defend Client from and against any and all claims, demands, suits, actions or proceedings by a third party (for the purposes of this Section 11, “Claims”), and shall indemnify and hold harmless Client from and against any and all liabilities, losses, damages, costs or expenses (including reasonable outside lawyers’ fees) (for the purposes of this Section 11, “Losses”) suffered or incurred by Client in relation to any and all such Claims:
(a) that the Cloud Services infringe upon an Intellectual Property Right under the laws of Canada or the United States; provided that the Losses suffered or incurred by Client resulting from such infringement Claim are required to be paid in a settlement approved by eCompliance or awarded by a court in a final, non-appealable judgement; or
(b) regarding eCompliance’s fraud or willful misconduct.
11.2.Client’s Indemnification Obligation.Client shall, at its expense, defend eCompliance and its Affiliates from and against any and all Claims, and shall indemnify and hold harmless eCompliance and its Affiliates from and against any and all Losses, suffered or incurred by eCompliance and/or its Affiliates in relation to any and all such Claims regarding:
(a) Client Data;
(b) Client’s breach of any and all of Section(s) 4.1, 4.2, 4.5, 5.2 or 5.3 of this Agreement; or
(c) Client’s fraud or willful misconduct.
11.3.Additional Remedies. If any part of the Cloud Services is, in eCompliance’s opinion, likely to or does become the subject of a Claim of infringement of third party Intellectual Property Rights, then eCompliance may:
(a) use reasonable efforts to modify the affected portion of the Cloud Services so that it is non-infringing;
(b) obtain permission, at eCompliance’s expense, for Client to continue to use such portion; or
(c) terminate this Agreement or the applicable Order Form(s) in exchange for a pro rata refund of any unused prepaid Fees for the then-current applicable Subscription Period as liquidated settlement of any liability other than the obligation of indemnification in Section 11.1.
11.4.Sole Remedy. Sections 11.1 and 11.3 constitute Client’s sole remedies, and eCompliance’s sole obligations, in respect of infringement of intellectual property rights.
11.5.Additional Terms. The indemnification obligations on the part of either Party are conditional upon:
(a) the indemnifying Party being notified in writing promptly of the indemnified Party’s receipt of notice of the Claim (provided, however, that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations under this Section 11, except to the extent of any material prejudice to the indemnifying Party as a direct result of such failure);
(b) the indemnifying Party having sole control over the defence or settlement of such Claim; and
(c) the indemnifying Party being given the necessary authorization, information and full co-operation and assistance by the indemnified Party for the defence of same (at the indemnifying Party’s cost); provided in all cases, however, that the indemnifying Party shall not make any admission against the indemnified Party’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on the indemnified Party without the indemnified Party’s prior written consent.
12.TERMINATION AND SUSPENSION
12.1.Termination for Insolvency or Material Breach. A Party may terminate this Agreement and any outstanding Order Form if the other Party:
(a) makes a general assignment for the benefit of creditors, makes a written admission of its inability to pay its debts or obligations as they become due, has a petition in bankruptcy filed by or against it (and such petition is not dismissed within 30 calendar days), a receiver or trustee of any of its property is appointed, is adjudged to be insolvent by any court having jurisdiction, or it is dissolved, liquidated or terminated; or (b) materially breaches this Agreement and such breach is not cured within 30 days of written notice of such breach. No prepaid Fees are refundable.
12.2.Immediate Termination or Suspension of Services. In the event that eCompliance, acting reasonably, suspects or learns of any of the following described circumstances, then eCompliance may immediately terminate this Agreement or suspend or disable Client’s use and/or receipt of the Services or any component thereof (including by use of any eCompliance Disabling Device(s) or any other lawful means), in addition to any other remedies eCompliance may have:
(a) any breach of Section(s) 4.1, 4.2, 6, or 8, or Client’s breach of its payment obligations hereunder;
(b) Client’s failure to cooperate with eCompliance’s reasonable investigation of any suspected violation of this Agreement;
(c) any circumstance that requires suspension of the Services in order to protect the Services, eCompliance, or its client’s data; (e) suspension required by law or governmental authority;
(f) Client or any User is, has been, or is likely to be involved in any fraudulent, misleading or unlawful activities; or
(g) this Agreement expires or is terminated.
12.3.Termination for Convenience. Client may cancel the Services and terminate this Agreement and any then-current Order Forms at any time by written notice to eCompliance and payment of 80% of all Fees and other sums owing to eCompliance under the terminated Order Form(s), including all Fees that would have become payable had the Agreement and each Order Form remained in effect through expiration of its then-current period (i.e. the period in which the effective date of termination occurs). No such termination will be effective without the provision by Client to eCompliance of the full amount of such payment, in conjunction with such termination notice. Client agrees that the requirement to make such payment is a reasonable estimate of compensatory and liquidated damages for eCompliance in the event of the early termination, and not a penalty. For COVID-19 Trials, eCompliance may terminate this Agreement and/or the applicable Order Form at any time on written notice to Client.
12.4.Termination Obligations. In addition to any other termination obligations hereunder, upon the earlier of termination of this Agreement, termination of any outstanding Order Form, or expiry of any Subscription Period:
(a) Client shall immediately:
pay all Fees and other sums owing to eCompliance under the affected Order Form(s) under the applicable terminated or expired Order Form(s) until the effective date of termination;
in the event of termination of this Agreement by eCompliance pursuant to Section 12.1 or 12.2, pay all Fees and other sums owing to eCompliance under the terminated Order Form(s), including all Fees that would have become payable had the Agreement and each Order Form remained in effect through expiration of its then-current period (as applicable). Client agrees that the requirement to make such payment is a reasonable estimate of compensatory and liquidated damages for eCompliance in the event of such termination, and not a penalty.;
cease using, and ensure each affected User ceases using, any terminated or expired Services, Available Third Party Tools and eCompliance Materials;
comply with Section 8.4;
permanently erase all eCompliance Materials from all Client Systems, including all User Devices; and
certify to eCompliance in a signed written instrument that it has complied with the requirements of this Section 12.4(a); and
(b)Client shall download all Client Data within 20 days following the effective date of termination or expiration.
13.1.Force Majeure. Except for payment obligations, neither Party will be liable to the other Party for any delay in performance or failure to perform due to any Force Majeure Event.
13.2. Feedback. Client may from time to time provide suggestions, comments or other feedback (“Feedback”) to eCompliance with respect to the Services or eCompliance Materials. All Feedback is and shall be given entirely voluntarily. Feedback, even if designated as confidential, shall not, absent a separate written agreement, create any confidentiality obligation for eCompliance. eCompliance is and shall be free to use, disclose, reproduce, license or otherwise distribute, and exploit the Feedback provided to it as it sees fit, entirely without obligation or restriction of any kind on account of intellectual property rights or otherwise.
13.3.Export Restrictions. Client will comply with all export laws and regulations that may apply to its access to or use of the Services.
13.4.Non-Exclusive Agreement. This Agreement shall not prevent eCompliance from entering into similar agreements with third parties, or from providing Services to third parties.
13.5.Independent Contractors. The Parties acknowledge and agree that they are independent contractors and will have no power, nor will either Party represent that it is has any power, to bind the other Party or to assume or to create any obligation or responsibility, express or implied, on behalf of the other Party or in the other Party’s name. This Agreement will not be construed as constituting the Parties as partners, joint venturers or agents or to create any other form of legal association that would impose liability upon one Party for the act or failure to act of the other Party.
13.6.Publicity. Neither Party shall issue or release any announcement, statement, press release or other publicity or marketing materials relating to this Agreement or otherwise use the other Party’s trademarks, service marks, trade names, logos, domain names or other indicia of source, affiliation or sponsorship, in each case, without the prior written consent of the other Party in each instance; provided, that eCompliance may identify Client as a client of eCompliance (using Client’s name and logo) and describe the general nature of the relationship between eCompliance and Client, as well as Client’s use and receipt of eCompliance’s Services, in eCompliance’s promotional materials, press releases, presentations, proposals to current and prospective clients, and on eCompliance’s website.
13.7.Rights and Remedies. Except as expressly set out in this Agreement, including the SLA , in the event of any breach of this Agreement the rights and remedies of the Parties provided for in this Agreement shall not be exclusive or exhaustive and are in addition to any other rights and remedies available at law or in equity. The Parties agree that in the event of any breach or threatened breach of Sections 4.1, 4.2, 6 or 8, money damages would be an inadequate remedy and the affected Party shall be entitled to seek injunctive relief, without the need to post a bond or other security.
13.8.Waiver; Severability. No waiver of any provision of this Agreement is binding unless it is in writing and signed by all Parties to this Agreement entitled to grant the waiver. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this Agreement shall be unimpaired and the Parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then eCompliance’s liability will be limited to the greatest extent permitted by law.
13.9.Third Party Beneficiaries. Nothing in this Agreement is intended to confer on any Party other than eCompliance, Client, their permitted assigns, and eCompliance’s suppliers, any benefits, rights or remedies.
13.10.Waiver re: Actions and Jury. Except to the extent precluded by applicable law:
(a) any parties to an action brought hereunder shall be individually named, and Client hereby waives any right it may have to litigate any such matter on a class or consolidated basis, or on bases involving disputes brought on a purported representative capacity; and
(b) the Parties hereby irrevocably waive any right they may have to trial by jury.
13.11.Assignment. Client may not transfer, assign, or otherwise dispose of this Agreement, or any of its rights or obligations under this Agreement, without eCompliance’s prior written consent. eCompliance may assign this Agreement or any rights under this Agreement to any third party without Client’s consent. Any attempted violation of this Section 13.11 will be null and void. This Agreement will enure to the benefit of and be binding upon the Parties and their respective successors and permitted assigns.
13.12.Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent:
(i) if to eCompliance, to the following address: 111 Queen Street East, #500, Toronto, Ontario M5C 1S1, Attention: President, Email: firstname.lastname@example.org; and
(ii) if to Client, to the current postal or email address that eCompliance has on file with respect to Client. eCompliance may change its contact information by posting the new contact information on the Website or by giving notice thereof to Client. Client is solely responsible for keeping its contact information on file with eCompliance current at all times during the Term.
13.13.Governing Law; Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada without reference to the conflicts of law principles. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded. The exclusive venue for all claims arising out of or in connection with this Agreement shall be in Toronto, Ontario, Canada, but the Parties agree that eCompliance may seek equitable relief in any venue it so chooses.
13.14.Construction; Language. The section and subsection headings used in this Agreement are for reference and convenience only, and shall not affect in any way the meaning or interpretation of the Agreement. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The Parties acknowledge that they have expressly required that this Agreement and all related documents be drafted in the English language. Les Parties reconnaissent avoir expressément exigé que le présent convention et tous les documents connexes soient rédigés en langue anglaise.
13.15.Survival. Notwithstanding the termination or expiry of this Agreement, all obligations which either expressly or by their nature are to continue after the termination or expiry of this Agreement shall survive and remain in effect, including Sections 5.1, 6, 7.1, 7.3, 8, 9.2, 9.3, 10, 11, 12.4, and 13.
13.16.Entire Agreement. This Agreement, and all Order Forms hereto, constitutes the entire agreement between the Parties and supersedes all previous agreements, promises, and representations, whether written or oral, between the Parties with respect to the subject matter hereof.
13.17.Amendment. This Agreement may not be modified except in a written document signed by the Parties. Notwithstanding the preceding sentence, eCompliance may amend this Agreement, in whole or in part by posting notice of such amendment to https://www.ecompliance.com/msa/, and such amendment becomes effective as of the date posted unless otherwise indicated by eCompliance.
In the Agreement, the following capitalized terms have the meanings set out below:
(a) “Acceptable Use Policy” means eCompliance’s acceptable use policy attached as Schedule “B”;
(b) “Access Methods” means the user identifiers and passwords for the Cloud Services used to verify a User’s credentials to use the Cloud Services and Support pursuant to this Agreement;
(c)“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity;
(d) “Agreement” means the Master Services Agreement, all schedules to the Master Services Agreement, each Order Form, all amendments, and any other document incorporated by reference herein;
(e) “API” means any eCompliance application program interface;
(f) “Available Third Party Tools” is defined in Section 3.7;
(g) “Business Day” means any day which is not a Saturday, Sunday or statutory public holiday in Ontario, Canada;
(h)“Client Data”means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or a User by, through or in connection with, the Services. Client Data includes information reflecting the use of the Services by or on behalf of Client or any User;
(i)“Client Systems” means Client’s information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks, telephones, telecommunications connections, whether operated directly by Client or through the use of third-party services, as well as User Devices;
(j)“Client Failure” is defined in in Section 4.6;
(k)“Cloud Services” means the cloud-based services made available by eCompliance for subscription or trial to Client, including the Service Software and associated offline components provided for download (e.g. mobile software applications provided by eCompliance), and any Modifications to such services and/or software, as may be purchased by Client pursuant to one or more Order Forms, but not including Professional Services or Available Third Party Tools;
(l)“Cloud Services Fees” means the fees payable by Client to eCompliance for the Cloud Services, as set out in an Order Form;
(m)“Confidential Information” is defined in Section 8.1;
(n)“COVID-19 Trial” means a free trial of a limited version of the Cloud Services as made available by eCompliance, and as set out in an Order Form, for qualified organizations during the COVID-19 crisis while supplies and resources to support these organizations last, at the sole determination by eCompliance.
(o)“Documentation” means any written specifications, manuals or instructions for the Services that eCompliance specifically provides or makes available for Client within Client’s account, as well as the then-current general minimum Client system requirements as published by eCompliance (as may be updated from time-to-time);
(p)“eCompliance Disabling Device” means any software, hardware or other technology, device or means (including, without limitation, any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by eCompliance or its designee to disable Client’s or any User’s use of the Services automatically with the passage of time or under the positive control of eCompliance or its designee;
(q)“eCompliance Materials” means the Service Software, APIs, Documentation and eCompliance Systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans or reports, that are provided or used by eCompliance or any subcontractor of eCompliance in connection with the Services or otherwise comprise or relate to the Services or eCompliance Systems;
(r)“eCompliance Systems” means the information technology infrastructure used by or on behalf of eCompliance in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems) and networks, whether operated directly by eCompliance or through the use of third-party services;
(s)“Feedback” means suggestions, comments, or other feedback provided by Client to eCompliance with respect to the Services;
(t) “Fees” means Cloud Services Fees and Professional Services Fees, as well as any fees for Available Third Party Tools;
(u) “Force Majeure” means any occurrence beyond the reasonable control of such Party or its sources, such as, acts of God, disasters, fires, floods, earthquakes, explosions, riots, war, terrorism, sabotage, nuclear incidents, act of government, Internet or telecommunication service provider failures or delays, communication line or power failures, or failure, inoperability or destruction of any computer equipment or software;
(v)“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any
[END OF SCHEDULE A]
ACCEPTABLE USE POLICY
1.General Restrictions re: Services and eCompliance Materials. Client shall not do or attempt, or permit any of its Users or any third parties, to do any of the following with respect to any or all of the Services, Available Third Party Tools, or eCompliance Materials (including, without limitation, any APIs):
(a) use them to provide services for or on behalf of any third party, or commercially exploit them in any way, including by operating as a service bureau, by time-sharing, or other multiple User basis, or by framing or mirroring any part of them;
(b) sell, resell, license, sublicense, rent, lease, lend, copy, reproduce, distribute, redistribute, assign, transfer, publish, or make available any of them or any Intellectual Property Rights therein;
(c) use them in any manner that competes with eCompliance, such as to build a competitive product or service or otherwise modify them or create derivative works or make derivative works based on them, including to build a product or service using any similar ideas, features, functions or graphics of them or to copy or modify any or all of them;
(d) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain their security, or to engage in denial of service attacks;
(e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them, in any manner, or eCompliance’s provision of services to any third party, in whole or in part, including to use any API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage;
(f) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose;
(g) disclose or publish any result of their performance;
(h) modify, reverse engineer, adapt, translate, decompile or otherwise derive their source code;
(i) use any software in connection with them that may require any or all of them, or other intellectual property of eCompliance or its suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction;
(j) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of them; or
(k) use them in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation or Intellectual Property Rights, including privacy and export laws.
2.Unauthorized Access or Use. Client shall not gain, or attempt to gain, or permit any third party to gain, unauthorized access to the Cloud Services, including without limitation through automated means not provided by eCompliance (e.g. APIs) or through means other than Access Methods. Without limiting the foregoing, Client will not attempt to exceed or circumvent limitations on access, calls and use of any API. A User’s Access Method may not be shared with, or user identification reassigned to (unless reassigned as part of a concurrent user access right to a new individual replacing one who no longer requires ongoing use of the Services), any other User.
3.Client Systems. Client shall ensure that all Client Systems (a) have antivirus protection with the most current patches and updates, and have been hardened for security by removing all unsecure and unnecessary services that may have the capability to extract, store or manipulate eCompliance’s Confidential Information or otherwise circumvent the security of the Cloud Services; (b) are configured in accordance with the “principle of least privilege”; and (c) will comply with any reasonable legal, technical and organizational security measures as may be specified by eCompliance from time-to-time.
4.Client Data. Client will not, nor will it permit its Users or any third parties to, or otherwise attempt to, upload, input, transmit, activate, process provide or make available via the Services or otherwise to eCompliance any Client Data that (a) contains any Harmful Code; (b) is discriminatory, hateful, threatening, abusive, harassing, defamatory, libelous, obscene, deceptive, or fraudulent; (c) constitutes unsolicited commercial electronic messages, bulk e-mail, junk mail, or spam; (d) contains any personal or protected health information; (e) otherwise violates the Agreement; or (f) infringes, misappropriates or otherwise violates any Intellectual Property Right, right of confidentiality, right of privacy, right of publicity or other rights of any third party, or violates any applicable law, rule or regulation.
[END OF SCHEDULE B]
ADDITIONAL PROFESSIONAL SERVICES TERMS AND CONDITIONS
1.Professional Services. All Professional Services to be provided by eCompliance to Client shall be described in an Order Form.
2.Fees for Services; Scope. Client will pay eCompliance the fees set forth in the Order Form.
3.Expenses. Unless explicitly stated in the Order Form, Client shall reimburse eCompliance for all reasonable travel, food, lodging, and other out-of-pocket expenses incurred. eCompliance agrees to comply with Client’s expense policies, as long as Client provides those policies to eCompliance with reasonable advance notice and in writing.
4.Change Control. If Client wishes to request a change in respect of Professional Services ordered pursuant to an Order Form, then eCompliance will prepare a written Project Change Request (“PCR”) and submit to Client outlining the impact on the cost of, and delivery schedule for, Professional Services under any Order Form as a result of any proposed change. For certainty, the rate will be mutually agreed upon by both Parties and if no such rate is established, such other Professional Services will be performed under eCompliance’s standard rate in effect at the time Upon dually signed PCR, eCompliance will proceed with such change request, at the price and upon the terms agreed and the applicable Order Form shall be deemed to be amended accordingly. Notwithstanding anything in this Section 4, no change requests for any Professional Services may be made after the 6-month anniversary of the Order Form Effective Date.
5.Client Data. Client acknowledges that eCompliance’s performance of the Professional Services is contingent on Client’s timely delivery of any Client Data as required by eCompliance to perform the Professional Services. Any failure to make untimely delivery shall be considered a Client Failure.
6. Representations and Warranties. eCompliance represents and warrants that the Professional Services will be performed in a professional and workmanlike manner.
7. Scheduling. Unless explicitly stated in the Order Form, Professional Services will be provided between Monday and Friday, from 8:30 am to 5:00 pm Eastern time. Weekend and overtime rates apply outside these days and hours.
8.Delivery Dates Delivery dates in an Order Form are estimates only and are not binding completion dates. Change orders and other unforeseen circumstances may require the Parties to adjust previously estimated delivery dates.
10.Ownership of Work Product. For certainty, eCompliance owns and shall own all right, title and interest in and to any and all deliverables, ideas, inventions, tools, routines, subroutines, processes, methods, designs and know-how, whether or not copyrightable or patentable, created or developed by eCompliance in the performance of the Professional Services, as well as all Modifications thereto. Nothing in this Agreement shall be construed as granting Client any right or license, whether by implication, estoppel or otherwise, except as expressly set forth herein.
[END OF SCHEDULE C]