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14/02/24
This SOFTWARE AS A SERVICE LICENCE AGREEMENT (the "Agreement") applies to: (i) granting access to the STELAR software platform (the "Service Software"); and (ii) providing the services and specifications listed in the applicable Service Proposal (the "Services"). By signing the applicable Service Proposal, the Customer agrees to be bound by the Agreement as of the effective date indicated on the applicable Service Proposal (the "Effective Date"). Norda and the Customer are hereinafter collectively referred to as the "Parties" and each one individually as a "Party."
(a) Licence to access and use the Service Software. Subject to the Customer and its Users (as defined below) complying with the terms and conditions of the Agreement, Norda will provide the Customer and its Users with the Services, including hosting, management, operation and maintenance of the Service Software for remote electronic access, under the terms and conditions set forth in the Agreement and in accordance with the level of service Norda agrees to maintain as part of access to the Services, as detailed in Appendix A. The Customer agrees that the data hosting included in the Services may be provided by a third party, at Norda's sole and absolute discretion.
(b) Updates. Norda reserves the right, at its sole and absolute discretion, to make from time to time, at no additional cost to Customer, updates and modifications to the Service Software (including maintenance releases, bug fixes, corrections and minor modifications) that Norda generally makes available to its other customers (collectively, the "Updates"). Norda will use commercially reasonable efforts to ensure that the Service Software is available as much as possible but makes no warranty to that effect. Norda may take the Service Software, or a portion thereof, offline for scheduled updates. Norda may also take the Service Software offline for critical maintenance without notice. What constitutes critical maintenance is at Norda's sole discretion, acting reasonably. Without limiting the generality of the foregoing, Norda is not and will not be liable for any damages, liabilities, losses (including any lost profits) or other consequences that the Customer or any User may suffer as a result of such Updates.
(c) New Complementary Services. Norda may periodically introduce new or significantly different complementary services, enhancements or services or features that are outside the scope of this Agreement (collectively, the "New Complementary Services") and which carry additional charges, if the Customer elects to avail itself of such services. These new Complementary Services will not be considered as an Update. The Customer is not obliged to use and pay for such new Complementary Services, and their use or deployment will be subject to a separate agreement between the Parties or an amendment to the Agreement.
(d) Beta Services. From time to time, Norda may make available to the Customer, at no additional charge, Services or features that are designated as beta, preview, evaluation or similar services (the "Beta Service(s)"). If the Customer elects to use the Beta Services (at its sole and absolute discretion), the Customer acknowledges and agrees that such Beta Services are intended and made available for evaluation purposes only, are not intended for use in a commercial setting, will not be supported by Norda, are provided on an "as is" basis excluding any express or implied representations or warranties of any kind, and that such Beta Services may be subject to additional terms and conditions which may be communicated by Norda to the Customer from time to time. Without limiting the generality of the foregoing, the Customer acknowledges and accepts that: (a) the Beta Services are not "Services" under the Agreement; and (b) notwithstanding the foregoing, the restrictions and limitations on Norda's obligations, as well as the Customer's obligations with respect to the Services under the Agreement, will apply to the Customer's use of the Beta Services. The Customer's right to use the Beta Services will expire on the date on which a version of the Beta Services becomes generally available to Norda's customers, provided that in the event that the Beta Services are deployed and become available as "Services" under the Agreement, additional terms, conditions and fees will apply as set forth in an amendment to this Agreement. Norda may discontinue the Beta Services (at its sole and absolute discretion) and may never make them generally available. Except as otherwise provided in the Agreement, which, for the avoidance of doubt, includes the indemnities set forth in the Agreement, and to the extent permitted by law, Norda disclaims all liability for any loss or damage arising directly or indirectly out of or in connection with any Beta Service. Norda will not implement or provide Beta Services to the Customer without the Customer's prior written approval (e-mail being sufficient) that it accepts the risks associated with such Beta Services.
Unless otherwise expressly provided for in the Agreement: (a) Norda has and will at all times retain exclusive control over the hosting, operation, provision, management and maintenance of the Services and the Norda Materials (as defined below); (b) Customer Data (as defined below) will be hosted in Canada or the United States only; and (c) the Customer has and will retain exclusive control over the operation, management and maintenance of, and all access to and use of, the Customer's IT infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and Internet connectivity, whether operated directly by the Customer or through the use of third-party services (collectively, the "Customer Systems"), and will have sole responsibility for any access to and use of the Services and Norda Materials by any User or person, if any, by or through the Customer Systems or any other means controlled by the Customer.
Norda may, from time to time, at its sole and absolute discretion, engage third parties to perform the Services, or any part thereof (each of them a "Subcontractor"). Norda undertakes that its Subcontractors will be held to standards of data confidentiality and system security protection at least equivalent to those to which Norda is subject under the Agreement.
In addition to any other provision of the Agreement, if any of the following events occurs: (a) Norda and/or the Customer receives an order which expressly or implicitly requires Norda and/or the Customer to suspend or terminate access to and use of the Norda Materials (as defined below) and/or the Services; (b) Norda is of the opinion that: (i) the Customer or a User has breached a fundamental term of the Agreement or has accessed or used the Norda Materials and/or the Services beyond the scope of the rights provided herein or for a purpose not authorized by the Agreement; (ii) the Customer or any User is, has been or is likely to be involved in fraudulent, deceptive or illegal activities in connection with the Norda Materials and/or the Services; (iii) there is a threat or attack to the Norda Materials; (iv) the use of the Norda Materials by the Customer or any User disrupts or poses a security risk to the Service Software or to any other Norda customer; or (v) use of the Norda Materials by the Customer or any User is prohibited by applicable law, then Norda may, directly or indirectly, by use of any means and on a temporary or permanent basis as the case may be, suspend or refuse access to or use of all or part of the Services or Norda Materials by the Customer or any other User, without incurring any resulting obligation or liability (except as provided in the Agreement and to the extent permitted by law), in addition to its right to terminate the Agreement as provided in paragraph 8.3. In the case of an order received by or related to any act or activity of the Customer, the Customer will be granted ten (10) days from the issuance thereof to fully comply with the terms thereof before Norda may avail itself of the rights set forth in this paragraph. This paragraph does not limit Norda's other rights or remedies, whether under the Agreement or under applicable laws and rules.
For purposes hereof, the term "Norda Materials" means the Service Software and its specifications, documentation, Norda’s Confidential Information (as defined below), trademarks and other trade names and designations of Norda, Updates, Norda Systems, Aggregate Data (as defined below) and any other information, data, documents, materials, content, devices, methods, processes, software and other technology and inventions which are or may be provided or used by Norda or any Subcontractor in connection with the Services or which otherwise comprise or relate to the Services or Norda's systems. For the avoidance of doubt, Norda Materials does not include Customer Data.
Subject to full payment of the Fees (as defined below) by the Customer and full compliance with all other terms and conditions of the Agreement, Norda hereby authorizes the Customer and its Authorized Users to access and use, during the Term (as defined below), the Norda Services and Materials that Norda may provide or make available to the Customer through its employees and authorized representatives (the "User(s)") and solely for the benefit of the Customer and for internal and legitimate purposes. This authorization to use the Norda Services and Materials is non-exclusive and non-transferable (subject to paragraph 12.3 hereof), it being understood that access to each Customer account by a User is exclusive to that User only. Without limiting the generality of the foregoing, the Customer and its Users are entitled to access and use the Service Software (and any related services) in accordance with the terms of the Agreement, but this Agreement is not otherwise an agreement for the sale or licence of software. No rights or licences are granted except as expressly provided in the Agreement. All rights not expressly granted by Norda in the Agreement are reserved.
The Customer shall not access or use the Services or Norda Materials, except as explicitly specified in the Agreement, and shall not permit any person other than a User to do so. For the sake of clarity and without limiting the generality of the foregoing, the Customer shall not: (a) copy, reproduce, disseminate, modify or create derivative works or improvements of the Services or Norda Materials; (b) rent, lease, loan, sell, sub-license, assign, distribute, publish, transfer or otherwise make available the Services or Norda Materials to any person other than a User, including on or in connection with any time-sharing, service bureau, software-as-a-service, cloud or other technology or service; (c) disassemble, decompile, decode, adapt or otherwise attempt to derive or gain access to the source code of the Services or Norda Materials, or any part thereof; (d) bypass or violate any security or protection features used by the Services or Norda Materials or access or use the Services or Norda Materials other than by a User using their own then-valid Access Credentials; (e) enter, upload, transmit or otherwise provide to or through the Services or Norda's systems any illegal or harmful information or materials, or information or materials containing, transmitting or activating any harmful code; (f) damage, destroy, disrupt, deactivate, impair, interfere with or otherwise hinder or harm in any way the Services, Norda Materials, Norda systems or Norda's provision of services to any third party, in whole or in part; (g) other than for a User, provide, disclose or permit any person to access, use or read the Service Software; (h) adapt, translate, change, customize, enhance, augment, delete, alter, or otherwise modify the Service Software in any way and to any extent, in whole or in part; (i) other than for internal benchmarking purposes and to evaluate within the Customer's organization the competitive advantages of the Services, access or use the Services or Norda Materials for the development of a competing service or software product, and the Customer shall not disclose the Norda Materials without Norda's prior written consent to any third party; (j) access or use the Services or Norda Materials in any manner or for any purpose that infringes, misappropriates or otherwise violates the Intellectual Property Rights or any other rights of any third party or violates any applicable law; or (k) access or otherwise use the Services or Norda Materials beyond the scope of the authorization granted under paragraph 2.2.
The Customer is responsible at all times during the Term for the following: (a) providing Norda with all reasonable support and access to personnel, data (including Customer Data) and computer systems, which Norda may deem necessary to enable Norda to make available the Services and provide access to the Service Software in accordance with its obligations under the Agreement; (b) setting up, maintaining and operating in good condition any ancillary equipment and services which Norda may deem necessary to connect to, access or otherwise use the Services and the Service Software; (c) maintaining sole liability for all activities, acts and omissions occurring on the Customer's and Users' accounts, whether authorized or unauthorized, and for compliance with the terms of the Agreement, the maximum number of Users specified in the Service Offering and all applicable laws relating to the Customer's and each User's use of the Services and Service Software, including those relating to the protection of intellectual property, data confidentiality (including Personal Information (as defined below), where applicable), communications outside Canada and the transmission of Customer Data to third parties; (d) ensuring that Users comply with the Service Software End-User Licence Agreement, which may be updated from time to time by Norda in which case, the Customer agrees that Users will comply with such updates; (e) promptly notifying Norda of any known or suspected unauthorized use of a password or account or any other known or suspected breach of security thereof or of the terms and conditions set forth in the Agreement and fully cooperate with Norda in connection therewith; (f) to the extent applicable, ensuring that the collection, uploading, processing, storage, access and sharing of Personal Information on or through the Services are done in strict compliance with privacy laws and any applicable laws. The Customer is also responsible for ensuring that its use of the Norda Services and Materials does not contravene applicable laws and other normative and legislative frameworks applicable to the Customer. Norda will not be liable for any delay or failure to perform caused in whole or in part by the Customer's delay in performing, or failure to perform, any of its obligations under the Agreement.
For the purposes hereof, the term "Customer Data" means the information, data and other content, in whatever form or medium, which is uploaded or otherwise received by Norda, directly or indirectly, from the Customer or a User or which incorporates or is derived from the processing of such information, data or content by or through the Services or the Service Software. For the avoidance of doubt, Customer Data includes: (i) all pre-existing data of the Customer showing the state of its assets, infrastructure and properties prior to the Effective Date; and (ii) information reflecting access to or use of the Services and/or the Service Software by the Customer and/or any User, with the exception of Aggregate Data.
During the Term, Norda will implement and maintain commercially reasonable security measures that may be physical, electronic, technological, organizational, or contractual, as well as other measures deemed commercially reasonable, aligned with current market practices applied to services similar to the Services and software similar to the Service software, to preserve the security and confidentiality of Customer Data processed and stored by the Customer on the Services. Norda undertakes to notify the Customer in a timely manner in accordance with applicable laws of any cybersecurity incident that may lead to a leak of Customer Data during the Term.
At all times during the Term, and subject to Norda's rights with respect to the Aggregate Data, the Customer has and will retain responsibility for: (i) all Customer Data, its contents and use; (ii) all information, instructions and documents provided by or on behalf of the Customer or any User in connection with the Services or the Service Software; (iii) Customer Systems; (d) the security and use of each username, identification number, password, licence or security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify a user's identity and authorization to access and use the Services or Service Software (the "Access Credentials") of the Customer and its Users. The Customer will also be responsible for: (A) employing all electronic, technological, organizational, contractual, physical, administrative, technical and other measures, controls, screening and security procedures and other safeguards necessary to: (i) securely manage the distribution and use of all Access Credentials and protect against unauthorized access or use of its account; and (ii) control the content and use of Customer Data, including downloading or otherwise providing Customer Data for processing by the Services; and (B) any access to and use of the Services and Norda Materials (including Service Software) directly or indirectly by or through the Customer's Systems or its Users' Access Credentials, with or without the Customer's knowledge or consent, including all results obtained and all conclusions, decisions and actions based on such access or use.
Without limiting the scope of paragraphs 6.3 and 9.3 of the Agreement, the Customer expressly agrees to be solely and exclusively responsible for any business, technical, administrative, legal, judicial or other decisions made as a result of its use of the Services, including the Customer Data and the Service Software. The Customer has been informed and accepts (fully releasing Norda of any liability) that the Customer Data obtained as a result of the use of the Services is a decision support tool only and, for this reason, it is not recommended that the Customer make a decision with respect to its assets based solely on the Customer Data. The Customer is entirely responsible for making any additional verifications it may deem necessary to confirm or deny the Customer Data. This caution complements the one in paragraph 6.3.
Customer will pay Norda the fees for the Services and Service Software payable hereunder, as set forth in the applicable Service Proposal (the "Fees"). These Fees may be allocated according to the availability of a portion of the Services staggered during the Term. Any services which may be provided by Norda to the Customer and which are not included as part of the Services will be the subject of separate agreements or amendment to the Agreement between Norda and the Customer from time to time. Without limiting the generality of the foregoing, in the event that the Customer wishes to add Users, modules, specifications or Services to its subscription, the Customer agrees to pay the difference between the Fees for its current subscription and the Fees for its upgraded subscription.
Norda will issue an invoice to the Customer for the Fees due in accordance with the applicable Service Offering on the Effective Date and for the entire Term of the Agreement. The Customer shall pay all Charges within thirty (30) days of receipt of any invoice from Norda. Unless otherwise specified on the applicable Service Proposal, the Customer shall make all payments hereunder in Canadian dollars by bank transfer, direct debit or electronic funds transfer. Any amount not paid when due will bear interest from that due date until payment, at the cumulative rate of one percent (1%) per month (12.68% per annum). In the event payment is late by more than thirty (30) days, Norda may, at its sole and absolute discretion, suspend or cancel the Services or access to the Service Software until full payment of the Fees and related interest has been received in accordance with the provisions of paragraph 1.4.
The Customer is responsible for all costs associated with obtaining and delivering Customer Data for use with the Services and Service Software.
he amounts to be paid under the Agreement do not include taxes. The Customer is required to pay all applicable taxes, with the exception of taxes on Norda's income.
At each Renewal, the Fees payable under the Agreement will be subject to increase by Norda based on, among other things, the operating costs of the Service Software or variations in the Services provided. Norda will provide the Customer with written notice of the increase in Fees at least ninety (90) days prior to the expiration of the Initial Term (as defined below) or the then-current Term, as the case may be, and if the Agreement is renewed pursuant to paragraph 8.2, the applicable Service Offering will be deemed amended accordingly.
Subject to any provision to the contrary in the Agreement, Norda will not make any refunds of payments made by the Customer under the Agreement.
For the purposes hereof, the term "Intellectual Property Right(s)" means any right, title or interest in and to generally recognized intellectual property rights of any kind, whether Canadian or foreign, registered or unregistered, including, but not limited to, any copyright, trademark, domain name, patent, invention, industrial design, know-how, trade secret, as well as any modification, adaptation, variation, addition, improvement or derivative of any of these rights or elements, including, but not limited to, the right to take legal and administrative action against any past, present or future infringement of these intellectual property rights.
All right, title and interest in and to the Norda Services and Materials, including all Intellectual Property Rights therein, belong solely and exclusively to Norda or its licensors, as applicable. Modifications, improvements and derivatives of the Services and Norda Materials (including Aggregate Data), including all Intellectual Property Rights therein, created and provided by Norda pursuant to the Agreement, whether through its employees or representatives or with a contribution from the Customer or its employees or representatives, will be and remain at all times, as between the Parties, the exclusive property of Norda. To the extent that the Customer or its employees may have any right, title or interest (including any Intellectual Property Rights) in or to such modifications, improvements or derivatives by operation of law, the Customer hereby irrevocably and without limitation assigns, sells and transfers (and will cause the assignment, sale and transfer by any User) all right, title and interest in and to such modifications, improvements or derivatives to Norda. The Customer agrees to execute (or cause to be executed) all documents that Norda may deem useful or necessary to give full effect to this paragraph and to perfect its ownership of such modifications, improvements or derivatives and of all Intellectual Property Rights relating thereto. The Customer shall maintain and enforce any action or policy necessary with its employees, representatives, consultants or suppliers to give full effect to the provisions of this paragraph.
All right, title and interest in and to the Customer Data and its Confidential Information, including all Intellectual Property Rights therein, belong solely and exclusively to the Customer or its licensors. Subject to Section 6.2 of the Agreement, the Customer hereby grants Norda a non-exclusive, sub-licensable, non-transferable (subject to Section 12.3 of the Agreement), limited, revocable, royalty-free licence to reproduce, distribute, use, host, copy, store, transmit, modify, display and otherwise use the Customer Data and its Confidential Information during the Term for the sole purpose of providing the Services hereunder. The Customer also hereby grants Norda a royalty-free, revocable, limited and non-exclusive licence during the Term to use and display the Customer's graphics, service marks, logos and trademarks on the Service Software for the purpose of performing its obligations under the Agreement.
Norda will have no obligation to treat as confidential any Feedback (as defined below) that Customer or any User provides (if any) to Norda hereunder, and nothing in this Agreement will restrict the right to use, modify, disclose, profit from, publish, keep secret or otherwise exploit the Feedback, without compensation or attribution to the person from whom the Feedback originated. For the purposes hereof, the term "Feedback" will mean any suggestions or other ideas for improving or otherwise modifying any of Norda's products or services, including the Norda Services and Materials.
Norda may distribute certain third-party products provided or integrated with the Service Software (collectively, the "Third-Party Products"). For the purposes of this Agreement, such Third-Party Products are subject to their own terms, conditions and licences. If the Customer does not agree to abide by the terms and conditions applicable to such Third-Party Products, it must not install or use them. The Customer acknowledges and agrees that, as between the Parties, the relevant third-party suppliers hold all right, title and interest, including all intellectual property rights, in and to the Third-Party Products.
If Norda determines that: (a) any Customer Data is in breach of the Agreement; (b) any Customer Data violates any applicable law, rule or regulation; or (c) the access or use of any Customer Data under the Agreement would reasonably be expected to constitute grounds for Norda's exposure to civil or criminal liability, then Norda will have the right, but not the obligation, to delete (or to request the Customer to delete) such Customer Data from the Services and/or the Service Software, and to inform the Customer of the timing of such deletion with reasonable notice (which will not be a request for permission).
Notwithstanding Section 5.3 hereof, the Customer hereby grants Norda, in perpetuity, an exclusive, irrevocable, royalty-free worldwide right and licence to compile, analyze, reproduce, anonymize and aggregate the Customer Data (the "Aggregate Data"). The Customer acknowledges and agrees that Norda may: (i) generate the Aggregate Data on the basis of the Customer Data; (ii) make the Aggregate Data available to the public in accordance with applicable laws; (iii) use the Aggregate Data to the extent and in the manner permitted by applicable laws, including following expiration or termination of the Agreement; and process, reformat, manipulate, adopt, create derivative works from, copy, display, import, export, store and otherwise use, in whole or in part, the Aggregate Data, in the manner Norda desires.
WITHOUT LIMITING THE SCOPE OF PARAGRAPHS 3.4 AND 9.3 OF THE AGREEMENT, NORDA DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY CUSTOMER DATA GENERATED AS A RESULT OF CUSTOMER'S OR ANY USER'S USE OF THE SERVICES, AND ANY RESULTING DATA AS PROCESSED, REFORMATTED, MANIPULATED, ADOPTED, DERIVED, COPIED, DISPLAYED, IMPORTED, EXPORTED OR STORED BY CUSTOMER. ANY RELIANCE PLACED BY THE CUSTOMER ON CUSTOMER DATA IS STRICTLY AT THE CUSTOMER'S OWN RISK. NORDA DISCLAIMS ALL LIABILITY ARISING FROM ANY RELIANCE PLACED ON CUSTOMER DATA OR ANY RESULTING DATA BY THE CUSTOMER OR ANY OTHER USER THEREOF, OR BY ANY PERSON WHO MAY BE INFORMED OF THE CONTENT THEREOF.
Each Party (a "Disclosing Party") may disclose or make available Confidential Information to the other Party (a "Receiving Party"). Subject to paragraph 7.2, the term "Confidential Information" means information in any form or medium (whether oral, written, electronic or otherwise) that the Disclosing Party designates as confidential or proprietary, including information, whether or not marked, designated or otherwise identified as "confidential," consisting of, or relating to, the Disclosing Party's technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing, and information in respect of which the Disclosing Party has indicated that it has contractual or other confidentiality obligations. Without limiting the foregoing, the Norda Materials will be deemed to be Confidential Information of Norda and the financial terms and conditions of the Agreement will be Confidential Information of each of the Parties.
Confidential Information does not include information that the Receiving Party can demonstrate by written documents or otherwise: (a) was legitimately known to the Receiving Party without restriction on use or disclosure prior to such information being disclosed or made available to the Receiving Party under the Agreement; (b) has been or becomes generally known to the public other than by breach of the confidentiality undertakings in the Agreement by the Receiving Party or any of its representatives; (c) has been or is received by the Receiving Party on a non-confidential basis from a third party who, to the knowledge of the Receiving Party, was not or is not, at the time of such receipt, under an obligation to maintain its confidentiality; or (d) has been or is being developed independently by the Receiving Party without reference to or use of any Confidential Information.
As a condition preceding any disclosure of or access to Confidential Information, the Receiving Party shall: (a) not access or use the Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with the Agreement; (b) except as permitted by paragraph 7.4 and subject to its compliance with the latter, not disclose or permit access to the Confidential Information other than to its directors, officers, employees or other representatives (collectively, the "Representative(s)") who: (i) need to know such Confidential Information in order for the Receiving Party to exercise its rights or perform its obligations under and in accordance with the Agreement; (ii) have been informed of the confidential nature of the Confidential Information and of the Receiving Party's obligations under Paragraph 7.3; and (iii) are bound by written obligations of confidentiality and restriction of use at least as protective of the Confidential Information as the terms set forth in Paragraph 7.3; (c) protect the Confidential Information from unauthorized use, access or disclosure using at least the degree of care that it uses to protect its similar sensitive information and in no event less than a reasonable degree of care; and (d) ensure that its Representatives comply with and are responsible for the confidentiality undertakings set forth herein.
If the Receiving Party or any of its Representatives is compelled by applicable law to disclose Confidential Information, then, to the extent permitted by applicable law, the Receiving Party shall: (i) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party may seek a protective order or other remedy or waive its rights under Paragraph 7.3 and (ii) provide reasonable assistance to the Disclosing Party, at the Disclosing Party's sole expense, to oppose such disclosure or to obtain an injunction, protective order or other limitations on disclosure. If the Disclosing Party waives its rights or if, after providing the notice and assistance required under paragraph 7.4, the Receiving Party remains required by law to disclose Confidential Information, the Receiving Party will disclose only that portion of the Confidential Information which, in the opinion of the Receiving Party's legal counsel, the Receiving Party is legally required to disclose and, upon request of the Disclosing Party, will use commercially reasonable efforts to obtain assurances from the applicable court or other competent authority that such Confidential Information will be treated as confidential.
Each Party acknowledges and agrees that a breach of this Article 7 would cause the Disclosing Party irreparable harm for which monetary damages would not be an adequate remedy and that, in addition to any other remedies available to it, the Disclosing Party is entitled to an injunction against such breach or threatened breach, without the need to prove actual harm or to post a bond or other security.
The Parties acknowledge and agree that no Personal Information will be exchanged or otherwise made available by either Party in connection with the Agreement. If, however, Personal Information is exchanged or otherwise made available by either Party in connection with the Agreement, they agree to complete and sign any other documents that may be useful or necessary to enable them to comply with applicable privacy laws. Where applicable and for the purposes hereof, Personal Information constitutes Confidential Information and each of the Parties undertakes to treat it in accordance with the requirements of the Agreement (including the obligations described in Article 7) and its legal obligations under applicable privacy laws (to the extent applicable). For the purposes hereof, "Personal Information" means any information about an identifiable individual, including information that can be used alone or in combination with other information to identify, contact or locate a single individual.
The Agreement will commence on the Effective Date and, unless terminated in accordance with the terms hereof, will continue for the initial term indicated in the applicable Service Proposal (the "Initial Term").
At the end of the Initial Term, the Agreement will, subject to sixty (60) days' notice of termination by the Customer, be renewed, automatically, for an additional term equivalent to the Initial Term ( each of them a "Renewal") on the same terms and conditions contained in the Agreement (or any other terms to be agreed between the Parties), with the exception of the Fees which will increase for each Term as set out in paragraph 4.5. For the purposes hereof, "Term" will mean the Initial Term, together with any Renewal, if any.
In addition to any other right of termination expressly set forth elsewhere in the Agreement: (a) Norda may terminate the Agreement if the Customer: (i) fails to pay any amount when due hereunder, and such failure continues for more than ten (10) days after written notice to that effect has been given by Norda; or (ii) defaults in any of its obligations, including without limitation under paragraphs 2.3, 2.4 or Article 7 immediately upon the occurrence of such breach and without the necessity of notice; (b) either Party may terminate the Agreement, with immediate effect upon written notice to the other Party, if the latter fails to pay or is unable to pay its debts as they become due, becomes or is declared insolvent, makes an assignment of its property or is declared bankrupt, makes a proposal to its creditors, or is a party (with or without its consent) to any proceedings relating to its bankruptcy, insolvency or the receivership or liquidation of its property; and (c) Norda may terminate the Agreement without cause at any time upon ninety (90) days' prior written notice to the Customer. For the sake of clarity, the Customer irrevocably waives the application of article 2125 of the Civil Code of Quebec, and if the Customer wishes to terminate the Agreement, it must do so in accordance with paragraphs 8.2 and 8.3 above. For the sake of clarity, it is understood that no refund will be made by Norda in the event of termination of the Agreement, including in the event of termination by the Customer in accordance with paragraph 8.3 (b) hereof.
On termination or expiry of the Agreement: (a) subject to Section 6.2 of the Agreement, all rights, licences, consents and authorizations granted by either Party to the other hereunder will immediately terminate, subject to the grant to the Customer of a limited right of thirty (30) days to proceed diligently with the recovery or migration of all Customer Data in Norda's possession. At the Customer's written request, Norda will use commercially reasonable efforts to destroy all documents and tangible materials containing, reflecting, incorporating or based on the Customer Data or the Customer's Confidential Information. The Customer acknowledges, however, that if it decides to delete any information downloaded, received, saved or stored in its Users' accounts, or to close such accounts, then all information so downloaded, received, saved or stored will be permanently deleted; (b) subject to paragraph 6.2 and subparagraph 8.4, Norda will cease all use of any remaining unrecovered Customer Data or Customer Confidential Information and at its sole discretion: (i) promptly return the Customer Data and Customer Confidential Information to the Customer, or; (ii) permanently delete such Customer Data and Customer Confidential Information from Norda's systems, subject to any residual rights granted to Norda with respect to the Aggregate Data under the Agreement provided that Norda may continue to use the Aggregate Data following the expiration or termination of the Agreement; (c) subject to subparagraph 8.4, the Customer shall immediately cease all use of the Norda Services or Materials and (i) promptly return to Norda, or at Norda's written request, destroy all tangible documents and materials containing, reflecting, incorporating or based on Norda's Confidential Information; and (ii) permanently delete all Norda Materials and Norda Confidential Information from all Customer Systems over which Customer has direct or indirect control; (d) subject to subparagraph 8.4, Norda may disable all Customer and User access to Norda Services and Norda Materials; (e) all fees accrued and unpaid at the date of termination or expiration of the Agreement will become immediately due and payable, and the Customer shall pay such fees; (f) paragraph 8.4 as well as Article 5, Article 6, Article 7, Article 9, Article 10, Article 11 and Article 12 of the Agreement will survive the expiration or termination of the Agreement, as will any other provision hereof which by its purpose is intended to survive such expiration or termination.
Each Party represents and warrants to the other Party that: (a) it has all necessary power and capacity to enter into the Agreement, to grant the authorizations and rights provided for in the Agreement and to perform its obligations under the Agreement; (b) as of the Effective Date, the signed Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such Party in accordance with its terms; (c) it is not subject to any restrictions or obligations which could reasonably be expected to affect the performance of its obligations under this Agreement; (d) the execution, performance, delivery or fulfillment of its obligations under this Agreement will not violate or result in any default under its articles of incorporation, by-laws, any agreement or any law to which it is subject, or any judgment, order or decree of any governmental authority to which it is subject, or any contract to which it is a party or by which it is bound; and (e) it is not involved in any bankruptcy, insolvency, liquidation, dissolution or reorganization proceedings.
The Customer represents and warrants to Norda that: (a) at all times, it will comply with all applicable laws (including, to the extent applicable, those relating to privacy, data protection and Personal Information) and this Agreement; (ii) the Customer Data provided or otherwise uploaded, obtained or stored by the Customer in connection with the Agreement (to the extent applicable, including any Personal Information that such data may contain), and which may be used by Norda pursuant to the Agreement, does not and will not infringe the rights of any third party, including any Intellectual Property Rights; and (iii) it has obtained all necessary rights and consents to grant Norda the rights granted herein.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH AT ARTICLE 9 AND WITHOUT LIMITING THE SCOPE OF PARAGRAPHS 3.4 AND 6.3 OF THE AGREEMENT AND TO THE FULLEST EXTENT PERMITTED BY LAW, ALL NORDA SERVICES AND MATERIALS ARE PROVIDED "AS IS" AND NORDA HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, AND NORDA SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, NORDA MAKES NO WARRANTY OF ANY KIND THAT NORDA'S SERVICES OR MATERIALS, OR THE RESULT OF THEIR USE, (I) WILL MEET THE REQUIREMENTS OF THE CUSTOMER OR ANY OTHER PERSON; (II) OPERATE WITHOUT INTERRUPTION; (III) ACHIEVE ANY DESIRED RESULTS; (IV) BE COMPATIBLE OR OPERATE WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICE; OR (V) BE ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERRORS. THE CUSTOMER ACCEPTS THAT THE SERVICES OFFERED BY NORDA, INCLUDING THE SERVICE SOFTWARE, ARE ONLY A DECISION SUPPORT TOOL BASED ON ARTIFICIAL INTELLIGENCE, AND DO NOT ESTABLISH ANY TREND ON WHICH THE CUSTOMER MAY PURPORT TO RELY. FURTHERMORE, THE CUSTOMER ACKNOWLEDGES THAT THE SERVICE SOFTWARE IS A DECISION SUPPORT TOOL OPERATING ON THE BASIS OF CUSTOMER DATA PROVIDED TO NORDA, THAT THE CUSTOMER IS FULLY RESPONSIBLE FOR THE ACCURACY, RELEVANCE, CHARACTER AND VERACITY OF SUCH DATA AND THAT SUCH DATA REFLECTS THE STATE OF THE CUSTOMER'S ASSETS AT A SPECIFIC DATE PRIOR TO ANALYSIS BY THE SERVICE SOFTWARE. MORE SPECIFICALLY, THE INFORMATION OBTAINED BY OR VIA THE SERVICE SOFTWARE OR BY ANY USE OF OR INTERACTION WITH THE NORDA MATERIALS DOES NOT CONSTITUTE ENGINEERING ADVICE AND IS MADE AVAILABLE SOLELY FOR INFORMATIONAL PURPOSES IN CONNECTION WITH THE ASSESSMENT OF ASSET LIFECYCLE MANAGEMENT. NORDA DOES NOT WARRANT THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY INFORMATION PRODUCED BY THE SERVICE SOFTWARE. ANY RELIANCE THE CUSTOMER PLACES ON SUCH INFORMATION IS STRICTLY AT THE CUSTOMER'S OWN RISK. NORDA DISCLAIMS ALL LIABILITY ARISING FROM ANY RELIANCE PLACED ON SUCH INFORMATION BY THE CUSTOMER OR ANY OTHER USER OF THE SERVICE SOFTWARE, OR BY ANY PERSON WHO MAY BECOME AWARE OF SUCH RELIANCE.
Norda will indemnify, defend and hold harmless the Customer from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of any nature whatsoever, including reasonable legal fees, disbursements and expenses ("Losses") incurred by the Customer arising directly from any claim, action, cause of action, demand, suit, proceeding or litigation (an "Action") by a third party (other than an affiliate of the Customer) that the Customer's use of the Services (excluding Customer Systems, Customer Data and third parties) pursuant to the Agreement infringes any Intellectual Property Right protected in Canada ("Infringement Action"). The foregoing obligation will not apply to any Action or loss arising out of or related to any: (a) accessing or using the Norda Services or Materials in combination with any hardware, system, software, network or other material or service not provided or authorized in writing by Norda; (b) modifying the Norda Services or Materials other than: (i) by or on behalf of Norda, or (ii) with the prior written approval of Norda in accordance with Norda's written specifications; (c) failure by the Customer to timely implement any modification, Update, replacement or enhancement made available to the Customer by or on behalf of Norda; (d) allegation of facts which, if true, would constitute a breach by the Customer of any of its representations, warranties, covenants or obligations under the Agreement; or (e) act of negligence, wilful misconduct or gross negligence on the part of the Customer or any third party on behalf of the Customer in connection with the Agreement. In connection with the defence or settlement of any Infringement Action, Norda may obtain the right for Customer to continue to use the Service Software or Services, replace or modify the Service Software or Services so that they become non-infringing or, if such option is not reasonably available, terminate the Agreement upon ten (10) days prior notice to Customer (without any further liability or obligation to Customer). The Customer may also choose to terminate the Agreement by giving ten (10) business days' notice to Norda. Subject to the other provisions of the Agreement and to the extent permitted by law, this paragraph sets forth the entirety of the Customer's sole and exclusive rights and remedies, and the obligations and liability of Norda (including its affiliates, and their officers, directors, employees, agents and Subcontractors) for any infringement of a third party's Intellectual Property Rights. In addition, Norda will indemnify, defend and hold harmless the Customer from and against all Losses incurred by the Customer in connection with any Action by a third party (other than an affiliate of the Customer) to the extent that such Losses result from: (a) a breach by Norda of any of its representations or warranties under the Agreement or any applicable law; or (b) any negligent act, wilful misconduct or gross negligence on the part of Norda.
Customer shall indemnify, defend and hold harmless Norda and its Subcontractors and affiliates, and each of its and their officers, directors, employees, agents, successors and permitted assigns (each of them a "Norda Indemnitee") from and against all Losses by such Norda Indemnitee incurred in connection with any Action (other than an affiliate of a Norda Indemnitee) to the extent such Losses result from: (a) the use of any material or information (including documents, data (including Customer Data), specifications, software, content or technology) provided by or on behalf of the Customer; (b) a breach by the Customer of any of its representations, warranties, covenants or obligations under the Agreement or any applicable law; or (c) any act of negligence, wilful misconduct or gross negligence by the Customer or any third party on behalf of the Customer in connection with the Agreement.
Each Party shall promptly notify the other Party in writing of any Action for which such Party believes it is entitled to indemnification under Article 10. The Party seeking indemnification (the "Indemnitee") shall cooperate with the other Party (the "Indemnitor") at its sole cost and expense. The Indemnitee shall immediately take control of the defence and investigation of any such Action and shall employ counsel reasonably acceptable to Indemnitee to handle and defend the same, at Indemnitor's sole cost and expense. The failure of the Indemnitee to comply with any obligation under this paragraph will not relieve the Indemnitor of its obligations under Article 10, except to the extent that the Indemnitor can demonstrate that it has suffered substantial loss as a result of such failure. The Indemnitee may participate in and observe the proceedings at their own cost and expense with counsel of their choice. If, for any reason, the Indemnitor fails to take control of the defence or investigation of an Action in a timely manner as provided in this paragraph, the Indemnitee may take all steps necessary to do so and hold the Indemnitor liable for all fees, costs and other expenses related thereto in accordance with the provisions of the Agreement.
TO THE FULLEST EXTENT PERMITTED BY LAW AND EXCEPT IN CASES OF NEGLIGENCE, GROSS NEGLIGENCE, WILFUL MISCONDUCT OR BREACH OF AN ESSENTIAL OBLIGATION OF THE CONTRACT BY NORDA, AND WITHOUT LIMITING THE SCOPE OF PARAGRAPH 9.2, IN NO EVENT WILL NORDA (NOR ANY OF ITS AFFILIATES OR SUBCONTRACTORS) BE LIABLE TO THE CUSTOMER UNDER ANY FORM OF CONTRACTUAL OR EXTRA-CONTRACTUAL LIABILITY, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFITS OR DECREASE IN VALUE; (ii) INABILITY TO USE, INTERRUPTION OR DELAY OF SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (iv) VIOLATION OF DATA OR SYSTEM SECURITY WHETHER OR NOT THE CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. FURTHERMORE, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NOTWITHSTANDING ANY PROVISION OF THE AGREEMENT TO THE CONTRARY AND TO THE FULLEST EXTENT PERMITTED BY LAW, NORDA WILL NOT BE LIABLE TO THE CUSTOMER OR ITS AFFILIATES, AGENTS, AND THEIR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES AND CUSTOMERS FOR ANY LOSS, COST, EXPENSE, DAMAGE, CLAIM, DEMAND OR LIABILITY, INCLUDING ATTORNEYS' AND PROFESSIONAL FEES, AND THE COST OF SETTLEMENT, COMPROMISE, JUDGMENT OR VERDICT INCURRED BY OR REQUIRED OF SUCH PARTIES WITH RESPECT TO ANY CLAIM RELATING TO THE USE OF CUSTOMER DATA.
SUBJECT TO SECTION 11.1 AND TO THE FULL EXTENT PERMITTED BY LAW, NORDA'S LIABILITY TO THE CUSTOMER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THE CONTRACT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, STATUTE OR OTHERWISE) WILL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY SUCH PARTY AND WILL NOT EXCEED TWO (2) TIMES THE FEES PAID BY THE CUSTOMER HEREUNDER.
The Customer and Norda are independent contractors and nothing in this Agreement will be construed as creating in any way a relationship of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
Each of the Parties acknowledges that: (i) the terms and conditions of the Agreement are the result of discussions and negotiations between them, (ii) they have had sufficient time to fully review the Agreement, (iii) they have read and understood the terms and conditions of the Agreement and their obligations hereunder, (iv) they have had the opportunity to obtain independent legal advice regarding the interpretation and effect of the Agreement as well as any other desired independent professional advice regarding the terms and conditions of the Agreement, and (v) the Agreement is executed voluntarily, without undue compulsion or influence.
Neither Party may assign the Agreement without the prior written consent of the other Party, which consent will not be unreasonably withheld, except that either Party may assign the Agreement without the consent of the other Party (but upon notice to the other Party) to an affiliate or to a third party acquiring all or substantially all of its assets.
The Agreement will be governed by and construed in accordance with the laws of the Province of Quebec and applicable federal laws, without regard to conflict of laws rules; and all claims arising hereunder will be brought exclusively in the courts located in the judicial district of Quebec City, Province of Quebec, to the exclusion of any other judicial district that may have jurisdiction, and waive any objection that such venue is impractical or improper.
The Agreement, including the Offer for Services and Appendix A, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes all prior and contemporaneous agreements or understandings, written or oral, with respect to its subject matter. No amendment, waiver or modification of the Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties. In the event of any conflict between the terms and conditions of the Service Offering, this Agreement and Appendix A, the terms and conditions of this Agreement and its Appendix will prevail.
Unless otherwise provided herein, any notice or consent provided for or required by the Agreement: (i) will be submitted in writing and delivered by hand, by registered or certified mail (with return receipt) or by e-mail (with return receipt requested) to the contact address set forth in the Service Offering or to such other address as the Party may designate in writing in accordance with this paragraph; and (ii) will be deemed to have been received on the day of delivery when delivered by hand or on the third (3rd) business day after mailing or receipt in the case of registered or certified mail or e-mail.
The Customer and Norda agree that, subject to the prior written approval of the other Party, each Party may use the other Party's name and logo in presentations, marketing materials, press materials, customer lists, financial reports and website customer lists, provided, however, that such use will be in accordance with such guidelines, standards and guides as either Party may issue from time to time in connection with the use of its names and logos. The approval granted under this paragraph will survive the expiration or termination of the Agreement until such approval is revoked by the Party owning the names or logos in question, for whatever reason.
No waiver by either party of any provision of this Agreement will be effective unless expressly set forth in writing and signed by the waiving party. Unless otherwise specified in this Agreement: (a) no failure to exercise or delay in exercising any right, remedy, power or privilege under this Agreement will operate or be construed as a waiver thereof; and (b) no single or partial exercise of any right, remedy, power or privilege under this Agreement will preclude any further exercise thereof or the exercise of any other right, remedy, power or privilege. For the sake of clarity, the waiver by one Party of any breach by the other Party will not be deemed a waiver of any subsequent breach.
If any term or provision of the Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability will not affect the remaining terms or provisions of the Agreement and will not invalidate or render unenforceable such term or provision in any other jurisdiction.
Neither Party will be liable for any delay or failure to perform its obligations under the Agreement if such delay is caused by Force Majeure, governmental authority, war, civil unrest, non-performance by a third party caused by an act of Force Majeure as defined in this clause, or any other cause beyond its control which prevents or significantly impedes the performance by either Party of its obligations under the Agreement, including, but not limited to, failure of telecommunications equipment or lines ("Force Majeure"), it being understood that the Force Majeure exception to performance will not apply to any payment obligation, unless the Customer is unable to fully access the Services for a period in excess of sixty (60) days, in which case all Fees paid for such period will be refunded by Norda until full resumption of the Services. If a delay or failure by a Party to perform its obligations is caused by an event of Force Majeure, performance of the Parties' obligations will be suspended for the period during which the event of Force Majeure continues.
The Agreement may be signed in several copies, each of which is considered to be an original, but all of which are considered to be one and the same Agreement.
Norda will provide maintenance services to resolve problems that affect the Customer's ability to use the Services. These problems will be classified as priority 0/1/2/3, as defined below:
Minor support issues related to the day-to-day operation of services and not affecting regular business operations. Support is provided by the Super-User.
Minor support issues related to the day-to-day operation of services and not affecting regular business operations.
Support related to abnormal behaviour in the operation of services affecting day-to-day business operations.
Major service malfunction seriously affecting day-to-day business operations, making the application completely inaccessible.
If a problem at priority level 0 is not resolved, the Super-User (as defined below) is responsible for moving the problem to the next priority level.
Norda support staff can also escalate (but not de-escalate) problems from one priority level to another, as may be reasonably required in the circumstances. The Services will not be considered unavailable or non-functional if the Customer's inability to benefit from the Services is caused solely by one or more of the following: (a) problems with the Customer's hardware or software; (b) problems with third-party power or telecommunications services or network connectivity; (c) negligence or misconduct of the Customer's employees or agents; (d) hacking or DDOS or similar attacks by a third party; (e) scheduled maintenance for which the Customer has received at least twenty-four (24) hours' written notice; (f) emergency maintenance; (g) one minute of inaccessibility where the software is completely unavailable to all users, regardless of page or data. The customer is responsible for providing alternative equipment for their staff during a period of inaccessibility (e.g., paper reports).
The Customer shall designate at least one of its employees to act as super-user ("Super-User"). The Super-User will be responsible for providing priority level 0 support within their organization. The Super-User will receive appropriate training from Norda in order to be able to provide level 0 support. Basic technical support to the Super-User will be provided from 8:30 a.m. to 5:00 p.m., Eastern Time, Monday through Friday, excluding holidays in the United States of America and Canada. During support hours, Norda will provide a commercially reasonable level of personnel sufficient to respond to technical support issues of all priority levels. Norda must also be authorized to contact the Customer's employees when necessary. Starting at a time to be agreed between the Parties, Norda will also provide emergency technical support outside the periods defined above to address priority 3 issues. The direct contact for emergency technical support will be an engineer with in-depth knowledge of the services.
Basic and emergency technical support will be provided by telephone and online (for basic support, it is recommended to use the customer portal and e-mail, as in most cases the Customer will be asked to send data electronically via the customer portal or e-mail). Contacts and contact information provided by Norda may be updated by Norda from time to time, upon written notice to Customer provided at least five (5) days prior to the update, to reflect a change in basic and emergency technical support contacts. Emergency technical support will be provided with contact information to be communicated during the Agreement Term. On-site support may be provided to the Customer on a time and materials basis pursuant to a separate written agreement between Norda and the Customer. Technical support is available in English and French.
Norda will endeavour, to the extent possible, to meet the response and resolution times indicated below, and will devote at least the personnel indicated in the "Norda Minimum Resource Commitment" section to mitigating and resolving the problem. A problem will be considered to have been "addressed" when a Customer employee has received a response to a technical support request from Norda personnel that meets Norda's "minimum resource commitment" for a problem of that priority level, confirming that work has begun to resolve the problem. A problem will be considered "resolved" when it no longer hinders the Customer's ability to use the Services.
While a problem is open, the Customer shall use its best efforts to respond to any questions from Norda within thirty (30) minutes to help resolve the problem. If several problems arise at the same time, the Customer and Norda will make reasonable efforts to agree on a priority list.
The update target is the frequency with which Norda should provide an update on the open question.
** Depending on the cause of the problem, resolution may take more or less time. The Customer will be informed while work is in progress to resolve or mitigate the problem.
