Master Service Agreement

MASTER SERVICES AGREEMENT

This Agreement is between eCompliance and Client as of the Effective Date.  The Agreement 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.  In this Agreement, the word “use” with respect to Client’s use of Cloud Services means “access or use”.   Capitalized terms not expressly defined in this Agreement have the meaning given to them in Schedule  A.

EACH PARTY ACKNOWLEDGES THAT IT HAS READ THIS AGREEMENT, UNDERSTANDS IT, AND AGREES TO BE BOUND BY ITS TERMS, AND THAT THE PERSON SIGNING ON ITS BEHALF HAS BEEN AUTHORIZED TO DO SO. THE PERSON EXECUTING THIS AGREEMENT ON CLIENT’S BEHALF REPRESENTS THAT HE OR SHE HAS THE AUTHORITY TO BIND CLIENT TO THESE TERMS AND CONDITIONS.

The Parties agree as follows:

  1. ORDER FORMS
    • Order Forms. All orders for the Services by Client shall be evidenced by an Order Form.   Each Order Form is hereby incorporated into this Agreement by this reference. 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.  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.
  1. SUBSCRIPTION PERIODS; TERM
    • Subscription Periods; Automatic Renewal. Unless otherwise indicated in the applicable Order Form, Subscription Periods for Cloud Services will automatically renew annually for periods (each, a “Renewal Subscription Period”) equal to the shorter of initial Subscription Period indicated in such Order Form or one (1) year, and may not be cancelled with less than forty-five (45) days’ notice prior to the expiration of the then-current period. Notice of non-renewal may be sent to eCompliance by email to support@ecompliance.com.
    • Term of Agreement. The term of this Agreement shall commence on the Effective Date and shall continue until terminated in accordance with this Agreement or until the expiry or termination of all Order Forms hereunder, whichever is later (“Term”).

SERVICES

    • Cloud Services. eCompliance will make the Cloud Services available to Client, and Client may use the Cloud Services, pursuant to the terms of any outstanding Order Form for Cloud Services and subject at all times to the terms and conditions of this Agreement. The Cloud Services will only be made available for use by Client upon eCompliance’s receipt of the applicable Cloud Services Fees and only during the Subscription Period.
    • Cloud Services Levels; Support; Sole Remedy. eCompliance will make the Cloud Services available to the Client and provide Support to Client in accordance with the SLA attached as Schedule B, also available at  http://go.ecompliance.com/Web-Service_Level_Agreement.html.   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. The remedies listed in the SLA are Client’s sole remedy for any failure of the Cloud Services or Support.
    • Order Forms. eCompliance will provide Professional Services to Client pursuant to any Order Form(s) for Professional Services agreed to by the Parties.  Unless otherwise agreed, all Professional Services are performed remotely.
    • APIs. eCompliance may make various APIs available via the Cloud Services from time to time in its discretion to support Client’s and use, and receipt, of the Cloud Services.  Client acknowledges and agrees that:  (a) the APIs may only be used on systems owned, leased or primarily operated by Client, (b) the APIs are made available solely to support use, and receipt, of the Services, and eCompliance has no liability with respect to any other uses of the APIs, and (c) certain of the APIs may include third-party content that is subject to open source license terms that may expand or limit Clients’ rights to use such content.
    • Modifications to Services. Client acknowledges and agrees that from time to time eCompliance may apply Modifications to any or all of the Services and/or eCompliance Materials, including, without limitation, any APIs, and that such Modifications may affect the appearance, functionality, features, content and/or the appearance of the Services and/or eCompliance Materials.  Excluding the addition of wholly new products, eCompliance shall make available, implement, configure, install, support, and maintain at its own cost any and all Modifications.
    • 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.
    • Third Party Tools. Client acknowledges and agrees that the Services interoperate with several Third Party Tools and that the Services may be highly dependent on the availability of such Third Party Tools.  If at any time any Third Party Tool ceases to be available to eCompliance on reasonable terms, then eCompliance may cease to provide such features to Client (a “Tool Change”).  In the event that any Tool Change has a material negative impact on the Cloud Services, then Client may, within thirty (30) days of a Tool Change, terminate this Agreement and any applicable Order Form for the portion(s) of the Services impacted by the Tool Change, by providing eCompliance with not less than ninety (90) days’ notice of its intention to terminate.  eCompliance does not warrant or support Third Party Tools.
    • Third Party Products & Services. eCompliance or third parties may from time to time make available to Client third-party products or services (“Third Party Products or Services”) either through the Services, by way of hyperlinks, or externally (e.g. training).   Any acquisition by Client of any such Third Party Products or Services, 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 Third Party Products or Services, whether or not they are designated by eCompliance as “certified”, part of an authorized configuration or otherwise.

 

  1. INTERNAL USE; AUTHORIZED & UNAUTHORIZED USE; ACCESS METHODS
    • Internal Use; No Additional Rights. Client and its Users shall use Services 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.
    • Users. Only Client and its Users shall be entitled to use the Cloud Services.  Client shall ensure that its Users only use the Cloud Services in a manner consistent with this Agreement.  Client shall be responsible for its Users’ compliance with, and breach of, this Agreement, whether such use is through Client Systems or any User’s software, hardware or mobile devices (e.g. via eCompliance mobile applications installed on User hardware or a mobile device) (“User Devices”).  Client shall ensure that User Devices (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.
    • Scope of Users. To the extent that an Order Form restricts use of the Services to: (a) a specified number of concurrent Users, then Client may not give more than such specified number of concurrent Users access to or use of the Services; (b) 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; (c) a specified number of events, then Client shall not use the Services to conduct more than the specified number of events; and/or (d) specified permission levels, then the Services may not be used by more than the specified number of Users at that specific permission level.
    • Access Methods; Unauthorized Access or Use. Client agrees that it is responsible for protecting the security and integrity of the Access Methods.  Client agrees that it is responsible for all actions taken by its Users and is liable for any acts or omissions occurring under any Access Methods, whether by Users or otherwise.
  2. CLIENT DATA; CLIENT RESPONSIBILITIES & RESTRICTIONS; FEEDBACK
    • As between the Parties, Client owns all right, title and interest in and to the Client Data.
    • Client hereby grants to eCompliance and its subcontractors a non-exclusive, worldwide right to use, host, store, copy, record, transmit, maintain, display and process the Client Data for the sole purpose of providing the Services to Client and its Users pursuant to this Agreement.
    • Client Responsibility. Client has sole responsibility for, and eCompliance disclaims all liability for (a) any Client Data; (b) all storage, backup and retrieval of Client Data; and (b) the condition, completeness, timeliness, backup, 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.
    • 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 Processed 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.
    • Personal Information. eCompliance acknowledge that Personal Information of Users may be included in Client Data (“Client Personal Information”).  As between the Parties, all Client Personal Information is the property of Client.  The use of the Services and collection of Client Personal Information is subject to eCompliance’s then-current privacy policy, as posted at http://go.ecompliance.com/privacy_policy.html, and may be updated from time-to-time.
    • Consents and Permissions. Client shall ensure that it and each User obtains all privacy consents and permissions as required by applicable laws, rules, rules, regulations and guidances for the collection, use, storage, disclosure and transfer of Client Data to eCompliance and for eCompliance’s use, copying, processing and storage of Client Data.
    • Client may from time to time provide Feedback.  Client shall, and hereby does, grant to eCompliance a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid-up license to use and exploit the Feedback for any purpose. Feedback, even if designated as confidential by Client, shall not create any confidentiality obligation for eCompliance.
  3. GENERAL RESTRICTIONS AND OBLIGATIONS; EXPORT CONTROL
    • General Client Obligations. 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 (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, Canadian copyright and export laws.
    • Client Systems and Cooperation.
      • 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.
      • Client shall at all times during the Term: (i) set up, maintain and operate in good repair, and in accordance with any Documentation, all Client Systems on or through which the Services are used and/or received; (ii) provide eCompliance personnel with such access to Client’s premises and Client Systems as is necessary for eCompliance to perform the Services in accordance with this Agreement and any Documentation; (iii) provide all cooperation and assistance as eCompliance may reasonably request to enable eCompliance to exercise its rights and perform its obligations under and in connection with this Agreement, including, without limitation, providing all information regarding function, format and data interpretation to eCompliance as requested in order for eCompliance to successfully complete the Services in accordance with the terms and conditions of this Agreement; (iv) promptly communicate to eCompliance all changes to Client’s resources, equipment, facilities and software, that impact or may impact the Services; and (v) carry out all other Client and User responsibilities set out in this Agreement in a timely and efficient manner.
    • General Restrictions; Acceptable Use Policy.  Neither Client or its Users may use the Services, eCompliance Materials (including, without limitation, any APIs) or Third Party Tools other than in the manner specifically identified in this Agreement.  Client agrees to, and to ensure that its Users will, comply with the Acceptable Use Policy.   Neither this Agreement nor the Acceptable Use Policy requires that eCompliance take any action against Client or any User or other third party for violating the Acceptable Use Policy or this Agreement, but eCompliance is free to take any such action it sees fit, in addition to any other remedies eCompliance may have.
    • Export Control. Client will not export or re-export directly or indirectly any or all of the Services, Third Party Tools, or eCompliance Materials (including, without limitation, any APIs) to any countries except in compliance with the Canadian Export Administration and any other Canadian export laws.  In particular, but without limitation, Services, Third Party Tools, and eCompliance Materials may not be exported or re-exported (including, without limitation, any download or delivery):  (a) into (or to a national or resident of) any Canadian embargoed country; or (b) to anyone on the Canadian Governments list of Specially Designated Nationals or the Canadian Governments Department of Trade Table of Denial Orders.  By using Services, Third Party Tools, and eCompliance Materials, Client represents and warrants that neither Client nor any User is located in, under control of, or a national or resident of any country to which export is prohibited or on any list maintained by the Canadian or U.S. government prohibiting making available the Services, Third Party Tools, or eCompliance Materials to Client or any User.
    • Corrective Action and Notice. If Client becomes aware of any actual or threatened activity prohibited by  this Section 6, Client shall, and shall cause its Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized use of the Services, Third Party Tools and eCompliance Materials and permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify eCompliance of any such actual or threatened activity.
    • Effect of Client Failure or Delay. 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”).
  4. INTELLECTUAL PROPERTY; CONTROL OF SERVICES AND SYSTEMS
    • Intellectual Property Ownership. All right, title and interest in and to the Services and eCompliance Materials (including, without limitation, any APIs), including, without limitation, all Intellectual Property Rights therein, are and will remain with eCompliance and the respective rights holders in the Third Party Tools. Client has no right, license or authorization with respect to any of the Services, eCompliance Materials or Third Party Tools except as expressly set forth in this Agreement.  All other rights in and to the Services, eCompliance Materials, and Third Party Tools are expressly reserved by eCompliance and the respective third-party licensors. In furtherance of the foregoing, Client hereby unconditionally and irrevocably grants to eCompliance an assignment of all right, title and interest in and to the Resultant Data, including, without limitation,  all Intellectual Property Rights relating thereto.
    • Services and System Control. Except as otherwise expressly provided in this Agreement, as between the parties, eCompliance has and will retain sole control over the operation, provision, maintenance and management of the Services, Third Party Tools and eCompliance Materials, including, without limitation, the: (a) eCompliance Systems; (b) selection, deployment, modification and replacement of the Service Software; and (c) performance of Support and Cloud Services maintenance, upgrades, corrections and repairs.
  1. SECURITY
    • eCompliance will maintain commercially reasonable administrative, physical and technical safeguards for the protection, confidentiality and integrity of the Cloud Services and Client Data.
    • Monitoring. Client acknowledges and agrees that eCompliance may monitor and analyze, and that the Cloud Services Results may include, aggregated anonymized information based on Client Data.
  2. FEES AND PAYMENT
    • Fees; Payment; Invoices; Expenses.
      • Fees; Manner of Payment. Client hereby agrees to pay the Fees for the Services set out in the 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.).
    • If Client pays by credit card, then Client hereby authorizes eCompliance to charge Client’s credit card or bank account (x) with respect to Cloud Services, at the beginning of the Subscription Period; and (y) with respect to Professional Services, in advance, prior to such services being rendered. If Client’s credit card payment does not go through for any reason, then Client will pay to eCompliance such payment amount within 5 days of the date of the applicable invoice, as well as an additional payment processing fee.
    • If Client is paying by invoice, then (x) with respect to Cloud Services, eCompliance will invoice Client at the beginning of the initial Subscription Period and each renewal Subscription Period; and (y) with respect to Professional Services, in advance on the invoice date for such services.
      • Cloud Services Fees. Cloud Services Fees are based on Cloud Services purchased pursuant to an Order Form and not actual usage. Cloud Services Fees for Renewal Subscription Periods are subject renewal pricing set-out in an Order Form.  If no renewal pricing is set-out in the Order Form, the rates shall be the then-current pricing for the Cloud Services.  Payment obligations are non-cancelable and fees paid are non-refundable.
      • 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 and expire the earlier of (i) the date set forth in the Order Form and (ii) one hundred and eighty (180) days from purchase.
      • For Consulting Services performed on-site, Client will reimburse eCompliance for eCompliance’s reasonable costs for all expenses incurred in connection with the Professional Services.
    • All amounts will be invoiced by eCompliance in U.S. currency, except that Canadian clients based in Canada will be invoiced in Canadian Dollars.
    • 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.
    • 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 are 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.
    • 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.
  1. CONFIDENTIALITY
    • Confidential Information.Confidential Information” means all information disclosed by a Party (“Disclosing Party”) to the other Party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client Data shall be considered Confidential Information of Client.  eCompliance Confidential Information includes, without limitation,  any non-public information of eCompliance, including, but not limited to, trade secrets, processes, methods, ideas, algorithms, plans, software source code, technical specifications, engineering data, computer software programs, manufacturing know-how, or other information relating to, incorporated in or forming part of the Services, the eCompliance Materials  and any other information which would be reasonably considered to be confidential, including the terms of this Agreement.  Confidential Information of each Party includes information concerning the operations, affair, businesses, technology and technical information, product plans and designs, and business processes of a Party.
    • Each Receiving Party acknowledges and agrees that (a) the Disclosing Party owns all right, title and interest in and to all of such Disclosing Party’s Confidential Information; and (b) the Receiving Party has no right to use or retain the Confidential Information for any purpose other than to carry out its obligations pursuant to this Agreement.  In addition, the Receiving Party shall (i) safeguard and protect the Confidential Information from theft, piracy or unauthorized access in a manner at least consistent with the procedures that Receiving Party uses to protect its own confidential information, but in no event less than a reasonable degree of care; (ii) ensure that any Confidential Information obtained from the Disclosing Party shall be disclosed only to the Receiving Party’s employees, contractors and agents (and, in respect of eCompliance, its suppliers) on a “need-to-know” basis, and that such individuals and/or entities shall be bound by an obligation of confidentiality similar to the obligations of the Parties under this Section 10; and (iii) shall be liable for any breaches of this Agreement by any person to whom it provides, or provides access to, the Receiving Party’s Confidential Information.
    • Exceptions. These confidentiality obligations do not apply to any information that is (a) already known to the Receiving Party at the time of disclosure other than through disclosure by the Disclosing Party; (b) in the public domain at the time of, or following, disclosure through no action or inaction of Receiving Party; (c) disclosed to the Receiving Party by a third party that is known not to be prohibited by law or agreement from disclosing same; or (d) subsequently and independently developed by the Receiving Party without reference to the Confidential Information disclosed under this Agreement.
    • Compelled Disclosure. If Confidential Information is required to be disclosed pursuant to a requirement of a governmental authority, such Confidential Information may be disclosed pursuant to such requirement so long as the Party required to disclose the Confidential Information, to the extent possible, provides the other Party with timely prior notice of such requirement and coordinates with the other Party in an effort to limit the nature and scope of such required disclosure.
  1. MUTUAL REPRESENTATIONS AND WARRANTIES; DISCLAIMERS
    • 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 his 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 by both parties, this Agreement will constitute the legal, valid and binding obligation of such party, enforceable against such party in accordance with its terms.
    • 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.
    • GENERAL DISCLAIMERS.

EXCEPT AS EXPRESSLY SET-OUT IN SECTION 11.1,

  • CLIENT’S USE AND RECEIPT OF THE SERVICES, ECOMPLIANCE MATERIALS, Third Party Products or Services AND THIRD PARTY TOOLS ARE ALL AT CLIENT’S SOLE RISK;
  • THE SERVICES, ECOMPLIANCE MATERIALS, Third Party Products or Services, AND THIRD PARTY TOOLS ARE PROVIDED “AS IS” AND AS AVAILABLE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THERE ARE NO REPRESENTATIONS OR WARRANTIES, CONDITIONS OR GUARANTEES, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) RELATING TO THE SERVICES, ECOMPLIANCE MATERIALS, Third Party Products or Services, AND THIRD PARTY TOOLS, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CURRENCY, ACCURACY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, UNINTERRUPTED USE, OR THAT THE SERVICES, ECOMPLIANCE MATERIALS, Third Party Products or Services, THIRD PARTY TOOLS, OR ANY PRODUCTS OR RESULTS OF CLIENT’S OR ANY USER’S USE THEREOF, WILL MEET ALL OR ANY OF CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE;
  • NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ECOMPLIANCE WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION; AND
  • WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ECOMPLIANCE DOES NOT REPRESENT OR WARRANT THAT THE SERVICES, ECOMPLIANCE MATERIALS, Third Party Products or Services, OR THIRD PARTY TOOLS ARE SECURE FROM HACKING OR OTHER UNAUTHORIZED INTRUSION, INCLUDING BUT NOT LIMITED TO DENIAL OF SERVICE ATTACKS.
  1. LIABILITY LIMITATIONS AND EXCLUSIONS
    • NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, NEITHER PARTY’S AGGREGATE LIABILITY HEREUNDER WILL EXCEED THE TOTAL OF ALL AMOUNTS PAID BY CLIENT TO ECOMPLIANCE IN RELATION TO THE SERVICE (OR PORTION THEREOF) PURSUANT TO THIS AGREEMENT IN THE 12 MONTH period PRECEDING the DATE ON WHICH THE EVENT GIVING RISE TO THE claim OCCURRED.
    • NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, IN NO EVENT WILL EITHER PARTY OR ECOMPLIANCE’S SUPPLIERS BE LIABLE FOR (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; OR (B) FOR ANY LOSSES (INCLUDING, WITHOUT LIMITATION, LOST GOODWILL, LOST SALES, LOST REVENUE, LOST PROFITS, LOST DATA, OR LOST CONTENT) WHATSOEVER ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT. IN ADDITION, ECOMPLIANCE SHALL NOT BE LIABLE TO CLIENT, AND ASSUMES NO RESPONSIBILITY, FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM: (I) FAILURES OF THIRD PARTY TOOLS, NETWORKS OR SERVICES, OR OF CLIENT’S SYSTEMS (INCLUDING, BUT NOT LIMITED TO, ANY FAILURE TO SECURE AND SAFEGUARD CLIENT’S SYSTEMS OR ACCESS METHODS); (II) UNAUTHORIZED ACCESS TO OR ALTERATION, THEFT, LOSS, CORRUPTION OR DESTRUCTION OF ANY CLIENT DATA OR CONTENT; OR (III) ANY MALFEASANT OR WILFUL ACT OR OMISSION BY CLIENT OR OF ANY THIRD PARTY (SUCH AS, WITHOUT LIMITATION, ‘DDOS’ ATTACKS).
    • CARVE-OUTS. THE LIMITATIONS ON LIABILITY IN THIS SECTION 12 DO NOT APPLY TO LIABILITY ARISING FROM A CLIENT’S 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, 5, 6, 7, 9 OR 10.
    • THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 12 APPLY (A) TO ALL CAUSES OF ACTION, (B) WHETHER BASED IN CONTRACT, TORT OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, FOR FUNDAMENTAL BREACH, HOWEVER CAUSED AND REGARDLESS OF THE LEGAL THEORY OF LIABILITY, (C) EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND (D) EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.
    • WITHOUT LIMITING ANYTHING TO THE CONTRARY CONTAINED HEREIN, CLIENT ACKNOWLEDGES AND AGREES THAT ECOMPLIANCE SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY THIRD-PARTY PRODUCTS OR SERVICES OR ANY THIRD PARTY TOOLS PROVIDED TO CLIENT UNDER THIS AGREEMENT AND THAT CLIENT’S SOLE AND EXCLUSIVE REMEDY RELATED TO SUCH PRODUCTS OR SERVICES SHALL BE WITH AND AGAINST THE THIRD-PARTY MANUFACTURERS OR PROVIDERS OF SUCH PRODUCTS, SERVICES OR TOOLS.
    • 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.
  1. INDEMNIFICATION
    • Client’s Indemnification Obligation. Client shall, at its expense, defend eCompliance and its Affiliates from and against any and all claims, demands, suits, actions or proceedings, and indemnify Client and its Affiliates from and against any liabilities, losses, damages, costs and expenses, including reasonable outside lawyers’ fees suffered or incurred by Client, in relation to  (a) Client Data; (b) Client’s breach of this Agreement; (c) Client’s breach of any applicable law, rule or regulation; (d) Client’s gross negligence or willful misconduct; and (e) any personal injury or damage to property.
  1. TERMINATION AND SUSPENSION
    • Termination for 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 thirty (30) days of written notice of such breach.  No prepaid Fees are refundable.
    • 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, Third Party Tools and eCompliance Materials, 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, 5, 6, 7, 9 or 10; (b) Client’s failure to cooperate with eCompliance’s reasonable investigation of any suspected violation of this Agreement; (c) access or manipulation of the Services without eCompliance’s consent; (d) 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.
    • 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:
      • Client shall immediately: (i) pay all agreed upon sums owing to eCompliance under the affected Order Form(s); (ii) cease using, and ensure each affected User ceases using, any terminated or expired Services, Third Party Tools and eCompliance Materials; (ii) return to eCompliance, or at eCompliance’s written request destroy, all documents and tangible materials containing, reflecting, incorporating, or that are based on, any eCompliance Materials or other eCompliance’s Confidential Information; (iii) permanently erase all eCompliance Materials and other eCompliance’s Confidential Information, as well as all electronic files containing, reflecting, incorporating, or that are based on eCompliance Confidential Information, from all systems Client directly or indirectly controls, as well as all User Devices; and (iv) certify to eCompliance in a signed written instrument that it has complied with the requirements of this Section 14.3(a);
      • Client shall download all Client Data; and
      • notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) eCompliance may retain the Client’s Confidential Information and eCompliance may retain Client Data, in each case, in its then current state and solely to the extent and for so long as required by applicable law, rule or regulation; and (ii) eCompliance may retain Client Data in its backups, archives and disaster recovery systems until such Client Data is deleted in the ordinary course. All information and materials described in this Section 14(c) will remain subject to all confidentiality, security and other applicable requirements of this Agreement.
  1. MISCELLANEOUS PROVISIONS
    • 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; provided, that the Party that is unable to perform has taken reasonable and customary measures to mitigate the effects of any such delays or nonperformance.  In any such event, the Party that is unable to perform shall promptly notify the other Party and shall use its reasonable to remedy the failure or delay.
    • Non-Exclusive Agreement. This Agreement shall not prevent eCompliance from entering into similar agreements with third parties, or from providing Services to third parties.
    • 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.
    • 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(s) of eCompliance (using Client’s name and logo) and describe the general nature of the relationship and use and receipt of eCompliance’s Services by Client, in eCompliance’s promotional materials, press releases, presentations, proposals to current and prospective clients , as well as on eCompliance’s website.
    • Rights and Remedies. Except as expressly set out in this Agreement regarding the SLA remedies, 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, 5, 6, 7 or 10, 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.
    • 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.  This Agreement may not be modified except in a written document signed by the Parties.
    • 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.
    • No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on any Party other than eCompliance, Client and their permitted assigns any benefits, rights or remedies.
    • Limitation on Actions. Client acknowledges and agrees that any action (regardless of form) against eCompliance arising out of this Agreement may be brought by Client up to, but in no circumstances after, the 6 month anniversary of the date on which the cause of action arose, regardless of any statute or law regarding limitation periods to the contrary.
    • Assignment; Subcontracting. The rights granted to Client are personal and 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.  The Parties agree and anticipate that eCompliance may fulfill its obligations under this Agreement (either partially or completely) through the efforts of, or by contract with, third parties.  Any attempted assignment in violation of this Section 15.10 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.
    • Each Party shall promptly notify the other Party in the event it: (a) becomes subject to any bankruptcy or insolvency proceedings; (b) has a dispute with the other Party; or (c) otherwise is required to provide notice hereunder. Any and all notices required to be delivered hereunder shall be sent by email to the e-mail address set-out in the recitals to this Agreement, with a copy to any individuals with whom the Parties typically communicate (“Email Notification”), or by registered or certified mail, postage prepaid, return receipt requested or by nationally-recognized overnight courier service to the address set out in the recitals to this Agreement, with a copy to any individuals with whom the Parties typically communicate (“Mail Notification”). Any such notification shall be deemed effective: (i) upon transmission when delivered by Email Notification; or (ii) when delivered by Mail Notification.
    • 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 or the International Sale of Goods Act (Ontario), 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 belief in any venue it so chooses.
    • Waiver of Certain Actions. 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.
    • Headings; 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 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.
    • Counterparts; Delivery by E-mail. This Agreement may be signed in any number of counterparts with the same effect as if the parties had signed the same document.  Delivery by electronic transmission in portable document format (PDF) or TIF format of this Agreement is as effective as delivery of an original of this Agreement.
    • 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, without limitation, Sections 5.7, 7, 9, 10, 11.2, 11.3, 12, 13, 14.3, and 15.

 

SCHEDULE “A”

 

DEFINITIONS

In the Agreement, the following capitalized terms have the meanings set out below:

  • Acceptable Use Policy” means eCompliance’s acceptable use policy attached at Schedule “C”;
  • 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;
  • 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;
  • 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;
  • API” means any eCompliance application program interface;
  • Business Day” means any day which is not a Saturday, Sunday or statutory public holiday in Ontario, Canada or Alberta, Canada;
  • Client Data” means, other than Resultant Data, 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 other than Resultant Data;
  • 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;
  • Client Failure” has the meaning given to it in Section 6.6;
  • Cloud Services” means the cloud-based services made available by eCompliance for trial or subscription by Client, including the Service Software 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 Third Party Tools;
  • Cloud Services Fees” means the fees payable by Client to eCompliance for the Cloud Services, as set out in an Order Form;
  • Confidential Information” has the meaning given to it in Section 10;
  • 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);
  • 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;
  • 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. For the avoidance of doubt, eCompliance Materials include Resultant Data and any information, data or other content derived from eCompliance’s monitoring of Client’s use of the Services, but do not include Client Data;
  • 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;
  • Feedback” means suggestions, comments, or other feedback provided by Client to eCompliance with respect to the Services;
  • Fees” means Cloud Services Fees and Professional Services Fees;
  • 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;
  • 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 (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby. Harmful Code does not include any eCompliance Disabling Device;
  • Intellectual Property Rights” means all intellectual property and other proprietary rights, including, without limitation, all rights provided under trade secret law, patent law, copyright law, trade mark or service mark law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor;
  • Modifications” means any enhancements, changes, corrections, improvements, translations, adaptations, revisions, developments, new versions, upgrades or updates; and “Modify” shall mean the creation of any of the foregoing;
  • Order Form” means a supplemental ordering document that is in writing and executed by the Parties and that provides for the purchase of Service(s) by Client, including any exhibits thereto;
  • Party” means either eCompliance or Client;
  • Personal Information” means information that (i) is disclosed or transferred by Client or Users to eCompliance pursuant to this Agreement or is otherwise obtained, used in, stored, generated, or produced as the result of the use of the Cloud Services; and (ii) identifies an individual, such as an individual’s social security number, social insurance number, or other government issued number, date of birth, home address, telephone number, email address, credit card information, or a person’s name in combination with any other of the elements listed herein;
  • Process” means to take any action or perform any operation or set of operations that the Cloud Services and/or Support are capable of taking or performing on any data, information or other content, including, without limitation, to upload, download, store, manage, maintain, copy, adapt, alter, make other derivative works or improvements, process, output, display, transmit, or otherwise provide or make available. “Processing” and “Processed” have correlative meanings
  • Professional Services” means the customization, integration, training, consulting, development and other professional services identified from time to time in writing on a relevant Order Form, and any Modifications to such services, but does not include Cloud Services or Support;
  • Professional Services Fees” means the fees payable by Client to eCompliance for the Professional Services, as set out in an Order Form.
  • Renewal Subscription Period” has the meaning given to it in Section 2.1;
  • Resultant Data” means information, data and other content that is derived by or through the Cloud Services or Support from Processing Client Data and is sufficiently different from such Client Data that such Client Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further Processing of such information, data or content.
  • Services” means the Cloud Services, Support, and Professional Services;
  • Service Software” means the eCompliance software application(s) and any Third Party Tools or other software, and all Modifications of the foregoing, that eCompliance makes available for remote use of as part of the Cloud Services;
  • SLA” means the service level agreement schedule attached to this Agreement as Schedule B], as may be updated from time to time;
  • Support” means, with respect to the Cloud Services, the support services set out in the SLA, and any Modifications thereto. For clarity, Support does not include Professional Services, hardware and related supplies and support thereof, and any onsite (e.g. onsite at a Client location) support;
  • Subscription Period” means the initial term of each Cloud Service subscription as set out in an Order Form, and each Renewal Subscription Period. If no time period is set-out in an Order Form, the initial Subscription Period will be the 12 month period commencing as of the Order Form effective date;
  • Taxes” means any and all applicable national, federal, provincial, state, municipal, local or other governmental authority taxes including all sales, use, excise, personal property, utility, goods, services, value-added, gross receipts, and services taxes, now in force or enacted in the future with respect to the supply of the Services provided by eCompliance under this Agreement, provided however, that in no event shall Taxes include taxes on net income or capital;
  • Term” is defined in Section 2.2;
  • Third Party Tools” means the third party tools, software applications, services, content, materials, information, documents, data, specifications, products, equipment or components of or relating to the Services that are procured by eCompliance and with which any or all of the Services, including the Service Software, interoperate;
  • Third Party Products or Services” is defined in Section 3.8;
  • Tool Change” is defined in Section 3.7; and
  • Users” means those employees, agents, and independent contractors of Client that are authorized by Client to access the Cloud Services and who have been supplied Access Methods, or as otherwise set out in the applicable Order Form.

[END OF SCHEDULE]

SCHEDULE “B”

SERVICE LEVEL AGREEMENT (“SLA”) – CLOUD SERVICES

eCompliance is committed to providing first-rate service and support to its customers to assist resolution of any issues encountered in the use of the Cloud Services, as set forth in this SLA.  Capitalized terms not defined in this SLA have the meanings given to them in the Agreement.

The remedies set forth in this SLA are Client’s sole and exclusive remedies for any failure to achieve the service levels set forth in the SLA.

 

  1. DEFINITIONS

% Availability” has the meaning given to it in Section C.

Availability” or “Available” means the time in any given calendar month during a Subscription Period that the Cloud Services is available for access by Client or any User.

Availability Commitment” has the meaning given to it in Section C.

Emergency Downtime” means any suspension of the Cloud Services, or Client’s access thereto, as contemplated in the Agreement,  or any other such time as the Cloud Services is not Available due to a short-term emergency condition under a condition or situation which poses danger to the systems, equipment, networks, or facilities required for rendering the Cloud Services, danger to life, etc., as the case may be, and has to be attended promptly.

Excusable Events” means any minutes during a particular time when the Cloud Services is not Available, or any Error, due to (i) maintenance, provided eCompliance has met its obligations in Section D, below; (ii) events of Force Majeure; (iii) Client, any other person or entity for whom Client is responsible (e.g. Users), or any other person or entity who is acting on behalf of Client; (iv) any other services or components not provided or maintained by eCompliance that impacts the Cloud Services; (v) any Emergency Downtime; and (vi) any Client Failure.

Maintenance Window” means anytime, other than between the hours of 8:00am and 5:00 pm Eastern Standard Time on a Business Day, in which eCompliance plans to conduct maintenance on the Cloud Services and its systems.

Scheduled Hours of Uptime” means 24 hours per day, 7 days per week (except for any holiday observed by the Toronto Stock Exchange or the New York Stock Exchange), less Excusable Events.

“Services Term” means the time period that the Client is permitted by eCompliance to use the Cloud Services.

  1. TECHNICAL SUPPORT SERVICES

eCompliance will provide Client with technical support services as follows:

 

  1. Technical Support; Severity Levels. eCompliance will respond to Errors (as defined below) during Support Hours (as defined below) in the operation of the Cloud Services in accordance with the severity level reasonably assigned by eCompliance as follows:
ERROR SEVERITY LEVEL TARGET RESPONSE TIME
Severity 1 < One (1) hour
Severity 2 < Four (4) Business Hours
Severity 3

Severity 4

< One (1) Business Day

TBD by eCompliance

 

where target response times are measured from the time , during Support Hours, that eCompliance receives sufficiently detailed notice of the Error from Client.  Note that these Severity Levels, the associated timelines and descriptions may change at eCompliance’s discretion.

eCompliance will maintain technical support by telephone and email between the hours of 8am and 7pm eastern standard time (“Support Hours”).  Calls received outside of Telephone Support Hours will be returned during the next Business Day.

Errors” and their severity level (as used in this Schedule) are defined as follows, but exclude any Error to the extent caused by Excusable Events:

  1. Severity 1 Error means a mission critical failure of the Cloud Services, or the Cloud Services is totally impaired, or which results in  corruption of all Client Data, and for which no practical work-around is available;
  2. Severity 2 Error means a loss of key functionality of the Cloud Services, which affects significant functions of the Cloud Services to be impaired, although the Cloud Services still operates, and impacts t significant aspects of Client’s business operations. For clarity a Severity 2 Error includes an error which prevents a material amount of ClientClient Data from being Available through the Cloud Services or causes a material amount of ClientClient Data to contain errors which render such Client Data substantially unusable; and
  3. A Severity 3 Error is an error which causes a minor function of the Cloud Services to be impaired, or creates a minor error in the Client Data, which negatively affects Client’s use of the Cloud Services, but the Cloud Services is usable with limitations or workarounds. Severity 3 Error includes general inquiries.
  4. A Severity 4 Error is a cosmetic issue, with no Cloud Services impact.

The correction of an Error may include the provision by eCompliance of a Work-Around.  A “Work-Around” means a temporary work-around, patch or bypass applied or supplied by eCompliance in order to temporarily correct an Error. Notwithstanding the availability of a Work-Around, eCompliance will continue to work to provide an applicable permanent correction as soon as is reasonably practical.

Notification of Errors; Response.  Client may notify eCompliance during Business Hours of any Errors via eCompliance’s help desk, which can be reached by phone at 1-800-686-1914 and by email at support@eCompliance.com, or such other phone number or email address as eCompliance may designate.  eCompliance will respond to Client by phone or email within the relevant response time set forth in Section 1 of this Schedule.

  1. When Client opens a ticket regarding a Error pursuant to the above procedure, the notification must include, at a minimum, the following information: (i) contact full name and contact number; (ii) start time and date of Error; (iii) full description and impact of outage on Client’s operations; (iv) portion of the Service impacted; (v) estimate of impact; and (vi) probable cause. Client agrees to continuously provide prompt updates to the Error if further information becomes available to Client.  DISCLAIMER:  ECOMPLIANCE makes no guarantee or warranty, whether express or implied, on the time required to resolve any Error.  In addition, eCompliance must be able to reproduce Errors in order to resolve them. Client agrees to cooperate and work closely with eCompliance to reproduce Errors, and to continuously provide prompt updates to the Error if further information becomes available to Client.
  2. SERVICE LEVELS

eCompliance will use commercially reasonable efforts to provide 99% Availability for the Cloud Services (“Availability Commitment”) , but specifically excluding all Excusable Downtime.

The “% Availability” in a calendar month is calculated as follows:  ((n – y)  x 100)/n

“n” = the total number of minutes in a given calendar month

“y” = the total number of minutes the Service is not Available in a given calendar month

  1. The calculation of % Availability will be prorated in any month in which the Service commences on any day other than the first day of the month.
  2. MAINTENANCE; EMERGENCY DOWNTIME

eCompliance will conduct planned maintenance and/or upgrades with respect to the Cloud Services during the Maintenance Window, unless Emergency Downtime is required or deferral of such maintenance would adversely affect the performance or security of the Cloud Services.   eCompliance shall not be liable for Cloud Services non-Availability during Emergency Downtime or maintenance/upgrades during Maintenance Windows.

 

[END OF SCHEDULE]

 

SCHEDULE C

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, 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 without limitation by operating as a service bureau, by time-sharing, or by framing or mirroring any part of them; (b) sell, assign, sublicense, rent, lease, loan, provide, copy, reproduce, distribute or otherwise transfer all or any portion of them; (c) use them to build a competitive product or service or otherwise modify them or make derivative works based on them, including, without limitation, 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 otherwise engage in denial of service attacks; (e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them, including, without limitation, any eCompliance Systems, in any manner, or eCompliance’s provision of services to any third party, in whole or in part (f) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose; (h) disclose or publish any result of their performance; (i) modify, reverse engineer, adapt, translate, decompile or otherwise derive their source code; (j) use any software in connection with them that may require any or all of them , or other intellectual property of eCompliance or its third party suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction by recipients; (k) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of them; or (l) use them in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation, including without limitation privacy laws.
  2. Unauthorized Access or Use. Client agrees that it is responsible for protecting the security and integrity of the Access Methods.  Client agrees that it is responsible for all actions taken by its Users and is liable for any acts or omissions occurring under any Access Methods, whether by Users or otherwise.  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.  Each Party shall notify the other Party immediately of any suspected or known unauthorized access or use of the Cloud Services, will use commercially reasonable efforts to prevent such unauthorized access or use, and will use commercially reasonable efforts to stop said unauthorized access or use.  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 Data. Client will not, nor will it permit its Users or any third party to, or otherwise attempt to, upload, input, transmit, activate or otherwise 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 Section 6 of the Agreement or this Acceptable Use Policy; or (f) infringes misappropriates or otherwise violates any Intellectual Property Rights, 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]

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