Master Services Agreement

MASTER SERVICES AGREEMENT

Last Updated: March 11, 2024

This Master Services Agreement (this “Agreement”) is entered into as of the last date on which both Parties have signed the applicable Order Form (the “Effective Date”) by and between eCompliance Management Solutions Inc. (“EcoOnline”) and customer name noted on the Order Form (“Customer”). Capitalized terms shall have the meanings set forth on Exhibit 1 (Definitions) or elsewhere in this Agreement.

1. THE SOFTWARE

The Software for which the Cloud Service is provided hereunder shall be set forth in an Order Form.

2. ACCESS TO AND USE OF THE CLOUD SERVICE

2.1 Generally. EcoOnline shall make the Cloud Service available to Customer pursuant to this Agreement. Customer may only allow its Subsidiaries to access and use the Cloud Service if they are noted on the Order Form or EcoOnline has otherwise confirmed in writing that they may access. Customer shall cause each such Subsidiary to abide by the terms and conditions of this Agreement and Customer shall remain fully liable for the acts and omissions of each Subsidiary. A Subsidiary’s right to access and use the Cloud Service shall automatically terminate if it is no longer a Subsidiary of Customer.

2.2 Documentation. EcoOnline hereby grants to Customer a non-exclusive, non-transferable license to use and reproduce the Documentation solely for Customer’s and its Subsidiaries’ internal business purposes in connection with their use of the Cloud Service.

2.3 Usage Restrictions. Customer, its Subsidiaries, and Authorized Users shall use the Cloud Service only as expressly permitted by this Agreement and shall not, and shall not permit or authorize any other Person, directly or indirectly, to: (a) modify, copy or create any derivative work based on the Cloud Service or Documentation; (b) license, sublicense, sell, resell, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Cloud Service or Documentation available to any third party, other than Authorized Users as permitted herein; (c) decompile or reverse engineer any portion of the Cloud Service or the Software (except to the extent the foregoing restriction is prohibited under applicable Law); (d) make any use of the Cloud Service that violates applicable Law or the privacy rights, Intellectual Property Rights, or other rights of any Person; (e) circumvent the user authentication or security of the Cloud Service or any host, network, or account related thereto; (f) transmit any viruses, worms, defects, Trojan horses, or programming of a destructive nature through the Cloud Service; or (k) delete, remove, modify, obscure, fail to reproduce, or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Cloud Service or Documentation.

2.4 Changes to Cloud Service. EcoOnline may modify the Cloud Service and Documentation from time to time at EcoOnline’s sole discretion and such modifications shall replace prior versions. Except for modifications made to comply with applicable Law, EcoOnline shall not make any modifications to the Cloud Service that would materially degrade its functionality.

2.5 Suspension of the Cloud Service. EcoOnline may suspend immediately Customer’s or any Authorized User’s account or access to or use of the Cloud Service if such account or activity is (a) disrupting or causing harm to EcoOnline’s or another Person’s computers, systems, or infrastructure or (b) is in violation of Section 3 (Usage Restrictions), applicable Law, or the Documentation; provided that, EcoOnline shall notify Customer of any such suspension and shall remove such suspension upon resolution to EcoOnline’s reasonable satisfaction of the circumstances giving rise to such suspension.

2.6 Acceptable Use Policy. Customer shall be responsible for each Authorized User’s compliance with, and breach of, this Agreement, including the Acceptable Use Policy attached as Exhibit 2.

2.7  Discontinuance. EcoOnline reserves, without liability, the right at any time to discontinue, temporarily or permanently, the Cloud Services (or any part thereof) and will provide Customer with no less than forty-five (45) days’ notice of any such expected discontinuances by EcoOnline.  If the entire Cloud Services are discontinued without cause, Customer’s sole and exclusive remedy is to receive a refund equal to the prorated amount of unused Cloud Services.

3. FEES AND PAYMENT

3.1 Fees. In consideration for Customer’s access to and use of the Cloud Service and Documentation and receipt of the Support Services, Customer shall pay to EcoOnline the fees for the Cloud Service set forth in each Order Form (the “Fees”).

3.2 Payment. All amounts due hereunder shall be due upon receipt of EcoOnline’s invoice and payable within thirty (30) days of the invoice date. Except as otherwise expressly set forth herein, all amounts paid under this Agreement are non-refundable. 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. Customer will be responsible for, and EcoOnline entitled to recover from Customer, all costs associated with collecting any fees or other amounts due and owing to EcoOnline from Customer, including but not limited to any legal costs, lawyer’s fees, court costs and collection agency fees. Any invoice issued in accordance with clause Section 3.6 (Usage Limits) shall be payable within fourteen (14) days of the invoice date.

3.3 Taxes. All Fees are exclusive of any sales, use, customs or other duty, tax, and similar levies imposed by any authority resulting from the transactions contemplated by this Agreement (“Taxes”). All Taxes (other than taxes on EcoOnline’s net income), and penalties and interest relating thereto, shall be Customer’s responsibility. If Customer is required to deduct withholding tax from payments to EcoOnline in accordance with applicable Law, Customer shall promptly send to EcoOnline the official tax certificate certifying such withholding tax deduction. If a deduction or withholding is so required, Customer shall pay to EcoOnline such additional amounts as will ensure that the net amount received and retained by EcoOnline equals the full amount which EcoOnline would have received had the deduction or withholding not been required.

3.4 Suspension for Nonpayment. Without prejudice to any other right or remedy EcoOnline may have, if Customer fails to pay any amounts when due and does not remedy such failure within ten (10) Business Days after the date such amounts were due and payable, EcoOnline may, without liability, cease performing or making available, as applicable, some or all of the Services, including access to the Cloud Service, until full payment of all outstanding amounts is received.

3.5 Verification of Use. EcoOnline shall have the right to monitor Customer’s use of the Cloud Service for the purpose of verifying Customer’s compliance with this Agreement.

3.6 Usage Limits. Cloud Service is subject to usage limits, including, for example, the quantities specified in Order Forms and technical and functional requirements set forth within the Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Cloud Service. If the Customer exceeds a contractual usage limit, EcoOnline may work with the Customer to seek to reduce its usage so that it conforms to that limit. If, notwithstanding EcoOnline’s efforts, the Customer is unable or unwilling to abide by a contractual usage limit, the Customer will execute an Order Form for additional quantities of the Cloud Service promptly upon EcoOnline’s request, and/or pay any invoice for excess usage in accordance with Section 3.2 (Payment).

4. CUSTOMER RESPONSIBILITIES

Accuracy. EcoOnline shall have no obligation to check any Customer Data for accuracy, adequacy, or completeness and may assume that all Customer Data uploaded to the Cloud Service or provided to EcoOnline is accurate, adequate, and complete as submitted. 

5. TERM AND TERMINATION

5.1 Automatic Renewal. Unless terminated as provided in this Agreement or either Party provides the other Party with at least forty-five (45) days’ advance written notice prior to the end of the then-current Subscription Term that it does not wish to renew such Subscription Term, or otherwise specified in an Order Form, this Agreement and the Cloud Service will automatically renew for successive twelve-month periods.

5.2 Termination by Either Party. Either Party may terminate this Agreement:

a. upon written notice if the other Party is in material breach and the breaching Party has failed to cure such breach within thirty (30) days after receipt of notice from the non-breaching Party describing the breach in reasonable detail; or

b. with immediate effect by giving written notice to the other Party if the other Party suspends or threatens to suspend payment of its debts, applies for or consents to the appointment of a trustee, receiver, or other custodian, makes a general assignment for the benefit of its creditors, or initiates any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law or admits in writing its inability to pay its debts as they fall due.

5.3 Effect of Termination. Upon the expiration or termination of this Agreement: (a) Customer shall immediately cease all access to and use of the Services and associated EcoOnline IP and the rights granted in this Agreement shall automatically terminate; (b) Customer shall immediately pay to EcoOnline all Fees and other amounts to be paid to EcoOnline through the end of the then-current Subscription Term as set forth in this Agreement, any Order Form or any SOW then in effect; and (c) EcoOnline may destroy or otherwise dispose of any of the applicable Customer Data in its possession unless EcoOnline receives, no later than thirty (30) days after the date of the termination of the SOW and/or this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the applicable Customer Data. EcoOnline shall use reasonable commercial endeavors to deliver the back-up to the Customer (in CSV format or similar format as decided by EcoOnline) within 60 days of its receipt of such a written request, provided that the Customer has, at that time, paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by EcoOnline in returning or disposing of the applicable Customer Data, together with EcoOnline’s fees for undertaking the delivery, charged in accordance with EcoOnline’s then current rates as set out in the applicable Order Form and/or SOW.

5.4 Survival. The termination or expiration of this Agreement will not affect any provisions which by their nature survive termination, specifically including Sections 2.3 (Usage Restrictions), 3.2 (Payment), 3.3 (Taxes), this Section 5.4 and Sections 6 (Proprietary Rights) through 11 (Miscellaneous).

6. PROPRIETARY RIGHTS

6.1 Customer Data. As between Customer and EcoOnline, Customer owns and shall retain all right, title, and interest, including all Intellectual Property Rights, in the Customer Data. Customer hereby grants to EcoOnline and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit the Customer Data for the purpose of providing the Services to Customer and its Users pursuant to this Agreement.  EcoOnline may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) and, during and after the Term of this Agreement, EcoOnline may: (i) use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other EcoOnline offerings and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.

6.2 EcoOnline IP. As between Customer and EcoOnline, EcoOnline owns and shall retain all right, title, and interest, including all Intellectual Property Rights, in and to the Software, Services, EcoOnline’s and its licensors’ trademarks, service marks, logos, and other indicia of origin used in connection with the Services, the Usage Data (as defined below), all proprietary information and know-how of EcoOnline and its licensors incorporated in or used in the provision of the Services, and all updates, modifications, improvements, and derivative works of any of the foregoing (collectively, the “EcoOnline IP”). All use of EcoOnline’s and its licensors’ trademarks, service marks, logos, and other indicia of origin hereunder shall inure to the benefit of the owner thereof. EcoOnline may only disclose Usage Data in the aggregate and in an anonymized fashion so that it is not possible to identify Customer or any Authorized User. “Usage Data” means all metadata and navigational, transactional, computer (e.g., IP address and browser), statistical, analytical, and similar data collected, generated, or derived from the use of the Services by Customer or its Subsidiaries or on their behalf.

6.3 Feedback. Customer grants to EcoOnline and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, license to use, copy, modify and distribute, without attribution, including by incorporating into any software or service owned by EcoOnline, any suggestion, enhancement request, recommendation, correction or other feedback (collectively, “Feedback”) provided by Customer or users relating to any software or service owned or offered by EcoOnline. For greater certainty, Customer has no obligation to provide any Feedback to EcoOnline.

7. REPRESENTATIONS AND WARRANTIES

7.1 By Both Parties. Each Party represents and warrants to the other Party that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms; (c) its entry into this Agreement and performance hereof shall not result in any breach or default under, and do not conflict with, any agreement, instrument, or understanding, oral or written, to which it is a party; and (d) all of its and its Affiliates’ activities under this Agreement shall be performed in compliance with applicable Law.

7.2 By Customer. Customer represents, warrants, and covenants that (a) it owns all right, title and interest in or has a license to all Customer Data, including Personal Data, and has the right to, and has obtained from all applicable Persons all rights and consents necessary to, grant to EcoOnline the rights granted in this Agreement, including to use, modify, process and reproduce such Customer Data in connection with the use of the Cloud Service and (b) all designs, specifications, instructions, directions, and Customer Data furnished to EcoOnline by Customer or their respective Representatives shall comply with all applicable requirements of any licenses between Customer and the licensor of such Customer Data.

7.3 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 7, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ECOONLINE AND ITS AFFILIATES AND THIRD PARTY SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, THAT DEFECTS SHALL BE CORRECTED, THAT THE SERVICES SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ACCESS TO THE SERVICES AND THEIR USE SHALL BE UNINTERRUPTED OR ERROR-FREE.

8. INDEMNITY

8.1 EcoOnline’s Indemnification Obligation.   EcoOnline shall, at its expense, defend Customer from and against any and all claims, demands, suits, actions or proceedings by a third party (for the purposes of this Section 8, “Claims”), and shall indemnify Customer from and against any and all liabilities, losses, damages, costs or expenses (including reasonable outside lawyers’ fees) (for the purposes of this Section 8, “Losses”) suffered or incurred by Customer in relation to any and all such Claims: (a) that the Cloud Services infringe upon an Intellectual Property Right under the laws of Canada or the United States; provided that the Losses suffered or incurred by Customer resulting from such infringement Claim are required to be paid in a settlement approved by EcoOnline or awarded by a court in a final, non-appealable judgement; or (b) regarding EcoOnline’s fraud or willful misconduct.

8.2 Customer’s Indemnification Obligation.  Customer shall, at its expense, defend EcoOnline and its Affiliates from and against any and all Claims, and shall indemnify EcoOnline and its Affiliates from and against any and all Losses, suffered or incurred by EcoOnline and/or its Affiliates in relation to any and all such Claims regarding: (a) Customer Data; (b) Customer’s breach of any and all of Section(s) 2.3 (Usage Restrictions), 6.1 (Customer Data) or 6.2 (EcoOnline IP) of this Agreement; or (c) Customer’s fraud or willful misconduct.

8.3 Additional Remedies.  If any part of the Cloud Services is, in EcoOnline’s opinion, likely to or does become the subject of a Claim of infringement of third party Intellectual Property Rights, then  EcoOnline may: (a) use reasonable efforts to modify the affected portion of the Cloud Services so that it is non-infringing; (b) obtain permission, at EcoOnline’s expense, for Customer to continue to use such portion; or (c) terminate this Agreement or the applicable Order Form(s) in exchange for a pro rata refund of any unused prepaid Fees for the then-current applicable Subscription Period as liquidated settlement of any liability other than the obligation of indemnification in Section 8.1.

8.4 Sole Remedy. Sections 8.1 and 8.3 constitute Customer’s sole remedies, and EcoOnline’s sole obligations, in respect of infringement of Intellectual Property Rights.

8.5 Additional Terms.   The indemnification obligations on the part of either Party are conditional upon: (a) the indemnifying Party being notified in writing promptly of the indemnified Party’s receipt of notice of the Claim (provided, however, that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations under this Section 8, except to the extent of any material prejudice to the indemnifying Party as a direct result of such failure); (b) the indemnifying Party having sole control over the defense or settlement of such Claim; and (c) the indemnifying Party being given the necessary authorization, information and full co-operation and assistance by the indemnified Party for the defense of same (at the indemnifying Party’s cost); provided in all cases, however, that the indemnifying Party shall not make any admission against the indemnified Party’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on the indemnified Party without the indemnified Party’s prior written consent.

9. EXCLUSIONS AND LIMITATIONS ON DAMAGES

9.1 LIMITATIONS. IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY AND ALL CLAIMS EXCEED THE TOTAL OF ALL AMOUNTS PAID BY CUSTOMER TO ECOONLINE PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.  FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL ECOONLINE’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. 

9.2 EXCLUSIONS. IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY OF THE FOLLOWING ARISING OUT OF OR CONNECTED TO THIS AGREEMENT: (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; (B) LOST GOODWILL, SALES, REVENUE, PROFITS, SAVINGS, DATA, USE, OR  CONTENT; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR  REAL PROPERTY DAMAGE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL ECOONLINE BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM: (I) ANY ACTS, OMISSIONS OR FAILURES OF CUSTOMER OR CUSTOMER SYSTEMS (INCLUDING ANY CUSTOMER FAILURE), ANY FAILURE TO SECURE OR SAFEGUARD ACCESS METHODS, ANY AVAILABLE THIRD PARTY PRODUCTS & SERVICES,  OR ANY THIRD PARTY SUPPLIERS,; (II) PROVISION OF THE SERVICES WHICH OCCURS OUTSIDE OF THE BOUNDARY OF ECOONLINE’S OWNED OR DIRECTLY OPERATED INFRASTRUCTURE (MEANING: THE POINT AT WHICH ECOONLINE’S OWNED OR DIRECTLY OPERATED INFRASTRUCTURE MEETS EITHER: (X) THE PUBLIC INTERNET; (Y) AN INTERFACE TO A THIRD PARTY SUPPLIER; OR (Z) A CONNECTIVITY BETWEEN ECOONLINE AND CUSTOMER AND/OR ANY USERS, SUCH AS AN API); OR (III) ANY MALFEASANT OR WILFUL ACT OR OMISSION BY ANY THIRD PARTY (SUCH AS, WITHOUT LIMITATION, ‘DDOS’ ATTACKS).  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY RELATED TO AVAILABLE THIRD PARTY TOOLS SHALL BE WITH AND AGAINST THE THIRD-PARTY MANUFACTURERS OR PROVIDERS OF SUCH TOOLS.

9.3 CARVE-OUTS. THE LIMITATIONS ON LIABILITY IN THIS SECTION 9 DO NOT APPLY TO LIABILITY ARISING FROM A PARTY’S FRAUD OR WILLFUL MISCONDUCT, CUSTOMER’S BREACH OF ITS PAYMENT OR TAX OBLIGATIONS HEREUNDER, OR CUSTOMER’S BREACH OF SECTION(S) 2.3, 6.1 or 6.2.

9.4 APPLICATION. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 9 APPLY TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE (INCLUDING FOR FUNDAMENTAL BREACH, GROSS NEGLIGENCE AND NEGLIGENCE), REGARDLESS OF CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.

10. CONFIDENTIALITY

10.1 Confidentiality. “Confidential Information” means any information or materials disclosed to or received by a Party or its Affiliates (the “Recipient”) from or on behalf of the other Party (the “Discloser”) in connection with this Agreement that is marked “confidential” or “proprietary” or would reasonably be understood by the Parties as confidential, including the terms of this Agreement. For the avoidance of doubt, the term Confidential Information does not include Customer Data.

10.2 Obligations. During the term of this Agreement and for a period of two (2) years thereafter (other than for trade secrets, which shall be indefinite), Recipient shall: (a) hold Discloser’s Confidential Information in confidence using the same degree of care as it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (b) limit disclosure of Discloser’s Confidential Information to its Representatives having a need to know such Confidential Information for the purposes of this Agreement and who are bound to Recipient to protect the confidentiality of such Confidential Information in a manner that affords substantially equivalent protection as that required of Recipient hereunder; and (c) use Discloser’s Confidential Information solely for purposes of this Agreement, in accordance with this Agreement.

10.3 Exclusions. Recipient’s obligations under Section 10.2 shall not apply to information or materials that (a) are or may hereafter be in the public domain (other than through unauthorized disclosure by Recipient); (b) were disclosed or otherwise known to it without any confidentiality obligation prior to disclosure by Discloser hereunder; (c) are lawfully obtained from a third party without confidentiality restriction; or (d) were independently developed by Recipient without reference to or use of Discloser’s Confidential Information.

10.4 Legally Required Disclosures. Recipient shall not be deemed to be in breach of Section 10.2 if it discloses Discloser’s Confidential Information as may be required by law or a court of competent jurisdiction or any governmental or regulatory authority; provided that, to the extent legally permissible, Recipient provides Discloser with prior notice of its intention to make such disclosure and affords Discloser a reasonable opportunity (under the circumstances of any order of a court, government or regulatory authority or other request made upon Discloser) to seek an injunction or other appropriate remedy.

10.5 Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement or earlier upon Discloser’s written request, Recipient and its Representatives shall, at Recipient’s election, return or destroy all of Discloser’s Confidential Information provided in connection with this Agreement; provided however, that Recipient may retain copies of written or printed Confidential Information of Discloser as is necessary to comply with its own document and information retention policies or as required by applicable Law, in which case, all such retained Confidential Information shall not be used or disclosed for any purpose except as necessary to comply with applicable Law.

11. MISCELLANEOUS

11.1 Injunctive Relief. Either Party’s breach of Section 10, or Customer’s breach of any restrictions set forth in this Agreement on Customer’s use of the Services or EcoOnline IP, may cause immediate and irreparable harm for which money damages may not constitute an adequate remedy. In such event, and notwithstanding the provisions of Section 11.5, the non-breaching Party shall be entitled to injunctive or other equitable relief for any such violation or incident from any court that has jurisdiction, without proof of actual damages or requirement to post a bond.

11.2 Publicity. In consideration for any pricing discount, EcoOnline shall have the right to identify Customer as a customer and to use Customer’s logo in connection therewith in EcoOnline’s marketing materials. Except as set forth in the preceding sentence, neither Party shall use any name, trademark, trade name, service name, or service mark, whether registered or not, of the other Party without the prior written consent of the other Party, unless required by applicable Law.

11.3 Assignment. Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided however, that EcoOnline may assign this Agreement to its Affiliates or in connection with the sale of substantially all of its business, whether by the sale of assets, equity, or otherwise. Any assignment or purported assignment in violation of this Section 11.3 is null and void. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.

11.4 Governing Law. This Agreement and the rights and obligations of the parties hereto shall be governed by and construed in accordance with the laws of the:

a. Province of Ontario, Canada, where the Customer is headquartered in Canada; or

b. State of New York, United States where the Customer is headquartered in the United States,

without reference to conflicts of law principles.  This Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods, as amended, replaced or reenacted from time to time, the application of which is expressly excluded.

11.5 Venue. The exclusive venue for all claims arising out of or in connection with this Agreement shall be in:

a. Toronto, Ontario, Canada, where the Customer is headquartered in Canada; or

b. New York County, New York, United States where the Customer is headquartered in the United States,

but the Parties agree that EcoOnline may seek equitable relief in any venue it so chooses.

11.6 Arbitration. Any controversy or claim arising out of or relating to this Agreement, or the breach thereof, shall be settled by arbitration:

a. where the Customer is headquartered in Canada, at the Canadian Arbitration Association pursuant to the general Canadian Arbitration Association Rules for Arbitration. Any Party may serve notice of its desire to refer a dispute to arbitration. The arbitration shall be held in Toronto, Ontario, Canada. The arbitration shall proceed in accordance with the provisions of the Arbitration Act. The decision arrived at by the arbitrator(s) shall be final and binding and no appeal shall lie therefrom. Judgement upon the award rendered by the arbitrator may be entered in any court having jurisdiction. The costs of the arbitrator shall be divided equally between the parties; or

b. where the Customer is headquartered in the United States, administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. Any such arbitration will be held in New York County, New York.  In any such arbitration, the arbitrator will have power to award only the forms of relief a court may award.

11.7 Notices. All notices and consents shall be in writing and shall be deemed to be given: (a) when actually received, if delivered personally; (b) two (2) Business Days after the date delivered to a reputable international next-day courier service; (c) if sent by email, at the time of transmission. Notices shall be sent to the Parties at their address set forth in the applicable Order Form or such other address as either Party may indicate by notice to the other Party. Notices to EcoOnline shall be addressed to the attention of its General Counsel. Notwithstanding the foregoing, any notices that purport to create, amend or incur obligations, terminate this Agreement, any Subscription Term, or any SOW, or provide notice of breach, indemnifiable claim or legal process may not be sent by email.

11.8 Relationship of the Parties. EcoOnline is an independent contractor, not Customer’s agent, partner or fiduciary, and does not undertake to perform any of Customer’s regulatory obligations or assume any responsibility for Customer’s business or operations.

11.9 Export. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software or the Services. Without limiting the generality of the foregoing, Customer shall not make the Software or the Services available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; or (ii) is listed on any U.S. government list of prohibited or restricted parties.

11.10 Waiver. A Party’s failure to exercise, delay in exercising, or partial exercise of a right or remedy provided by this Agreement or applicable Law shall not constitute a waiver of such right or remedy, a waiver of other rights or remedies, or a waiver of the further exercise of such right or remedy.

11.11 Force Majeure. If the performance by a Party (the “Affected Party”) of any of its obligations (excluding payment obligations) under this Agreement is prevented, or delayed due to any cause beyond its reasonable control, including, work stoppages, natural disasters, pandemics, catastrophic weather events, fires, riots, accidents, terrorism, war, unavailability of Third Party materials, or outages of power or communications networks (each a “Force Majeure Event”), the Affected Party shall not be liable for such non-performance, or delay as long as the Force Majeure Event and its effects on the Affected Party continue. The Affected Party shall promptly notify the other Party in writing of the Force Majeure Event and the effect on the Affected Party’s performance. The Affected Party shall employ commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as practicable.

11.12 Entire Agreement; Amendment.

a. This Agreement, together with all Order Forms and SOWs, constitutes the entire agreement and understanding of the parties with respect to its subject matter and supersedes all prior agreements, understandings, oral communications and prior writings of any kind with respect thereto. The Parties have not relied on any representations other than those set forth in this Agreement and have performed whatever investigation they deemed appropriate with respect to any or all of the subject matters of this Agreement.

b. Other than Order Forms and SOWs, no purchase order form or other order form or confirming document or any handwritten or typewritten text which purports to modify or supplement the text of this Agreement shall add to or vary the terms of this Agreement.

c. Neither this Agreement nor any Order Form or SOW may be amended orally. Any amendment must be in writing and signed by both parties.

d. In the event of a conflict between any terms, the following Order Form of precedence shall apply:

i. An Order Form shall control over

ii. A SOW, which shall control over

iii. This Agreement.

11.13 Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the Parties’ intent. The Parties shall negotiate in good faith to agree to a replacement provision that, to the extent possible, achieves the intended commercial result of the original provision.

11.14 Third Party Beneficiaries. Except as expressly set forth in this Agreement, any Person who is not a Party to this Agreement shall not be entitled to any benefit from or to enforce any right under this Agreement.

11.15 Language. 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.

EXHIBIT 1 – Definitions

Access Method” means the user identifiers and passwords for the Cloud Services used to verify an Authorized User’s credentials to use the Cloud Services and Support pursuant to this Agreement.

Affiliate” means, in relation to a Party, any Person that controls, is controlled by, or is under common control with such Party, where “control” means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of a Person, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such Person.

Agreement” means this Agreement, its Exhibits, Schedules, any SOWs and Order Forms executed by the Parties in connection with the Services relating thereto, and all Attachments and Exhibits of any of the foregoing.

EcoOnline IP” has the meaning given in Section 6.2.

Authorized User” means Customer’s and its Subsidiaries’ employees, contractors, and agents (including temporary employees and contract employees) authorized by Customer to access and use the Cloud Service on Customer’s or any of its Subsidiaries’ behalf.

Available Third Party Tools” means any third-party products or services made available to Customer by EcoOnline or a third party.

Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in New York, New York.

Cloud Service” means the online, Web-based applications of the Software provided by EcoOnline that are ordered by Customer under an Order Form.

Customer” means the Person identified as “Customer” in the first Order Form executed by the Parties.

Customer Data” means all Records, Personal Data, documents, content, and other data and information uploaded to the Cloud Service by Customer, any of its Subsidiaries, or any Authorized User.

Data Protection Laws” means the EU General Data Protection Regulation 2016/679 (GDPR), the California Consumer Privacy Act, and any other applicable similar privacy or data protection Laws.

Documentation” means the documentation for the Cloud Service made available by EcoOnline to Customer, including training materials and user manuals, which may be amended by EcoOnline from time to time upon notice to Customer.

EcoOnline 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 EcoOnline or its designee to disable Customer’s or any User’s use of the Services automatically with the passage of time or under the positive control of EcoOnline or its designee.

Effective Date” has the meaning given in the first paragraph of this Agreement.

Fees” has the meaning given in Section 3.1.

Force Majeure Event” has the meaning given in Section 11.9.

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 EcoOnline Disabling Device.

Intellectual Property Rights” means all patents, copyrights, moral rights, database rights, design rights, and rights in trade secrets and know-how, all other intellectual property and proprietary rights, all other equivalent or similar rights which may arise or exist anywhere in the world, in each case, whether registered or unregistered, and all applications for any of the foregoing rights.

Law” means all applicable law, statutes, regulations and codes from time to time in force.

Order Form” means any order for Services that references this Agreement and is executed by both Parties.

Party” means each of EcoOnline and Customer individually and “Parties” means EcoOnline and Customer collectively.

Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, self-regulatory organization, regulatory authority, or other governmental authority.

Personal Data” means (a) any information that, either alone or in combination with other readily available data, identifies an individual or from which an individual is identifiable, including any name, address, financial information or social security number, and (b) any information that comprises “non-public personal information”, “personal information”, “personal data” or equivalent term, as such terms are defined in applicable Data Protection Laws.

Personnel” means a Person’s employees, independent contractors, and subcontractors.

Professional Services” means the services to be provided by EcoOnline or any of its Affiliates to Customer set forth in any SOW.

Record” means the data that represents any physical or electronic document managed by the Cloud Service, including forms and contracts.

Representative” means a Person’s officers, directors, Personnel, attorneys, accountants, and agents.

Services” means, collectively, the Cloud Service, the Support Services, and any Professional Services.

SOW” means a statement of work for the provision of Professional Services by EcoOnline to Customer executed by both Parties that references this Agreement.

Software” means the object-code version of EcoOnline’s software programs ordered by Customer in an Order Form (including any related EcoOnline application programming interfaces).

Software Schedule” has the meaning given in Section 1.

Subscription Term” means the duration of the period during which Customer is entitled to use the Cloud Service, as set out in an Order Form.

Subsidiary” means, in relation to a Party, any Affiliate that is controlled by such Party where “control” has the meaning given in the definition of “Affiliate”.

Third Party” means a Person other than EcoOnline, Customer or their respective Affiliates.

Usage Data” has the meaning given in Section 6.2.

“User” means the Authorized Users listed on the Order Form.

EXHIBIT 2 – Acceptable Use Policy

1.General Restrictions re: Services and EcoOnline Materials. Customer shall not do or attempt, or permit any of its Authorized Users or any third parties, to do any of the following with respect to any or all of the Services, Available Third Party Tools, or EcoOnline Materials (including, without limitation, any APIs):

(a) use them to provide services for or on behalf of any third party, or commercially exploit them in any way, including by operating as a service bureau, by time-sharing, or other multiple User basis, or by framing or mirroring any part of them;

(b) sell, resell, license, sublicense, rent, lease, lend, copy, reproduce, distribute, redistribute, assign, transfer, publish, or make available any of them or any Intellectual Property Rights therein;

(c) use them in any manner that competes with EcoOnline, such as to build a competitive product or service or otherwise modify them or create derivative works or make derivative works based on them, including to build a product or service using any similar ideas, features, functions or graphics of them or to copy or modify any or all of them;

(d) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain their security, or to engage in denial of service attacks;

(e) damage, destroy, disrupt, disable, impair, interfere with or otherwise impede or harm them, in any manner, or EcoOnline’ provision of services to any third party, in whole or in part, including to use any API in a manner that exceeds reasonable request volume, constitutes excessive or abusive usage;

(f) use them for purposes of monitoring their availability, performance or functionality, or for any other benchmarking, comparison or competitive purpose;

(g) disclose or publish any result of their performance;

(h) modify, reverse engineer, adapt, translate, decompile or otherwise derive their source code;

(i) use any software in connection with them that may require any or all of them, or other intellectual property of EcoOnline or its suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction;

(j) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of them; or

(k) use them in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation or Intellectual Property Rights, including privacy and export laws.

2.Unauthorized Access or Use. Customer 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 EcoOnline (e.g. APIs) or through means other than Access Methods. Without limiting the foregoing, Customer will not attempt to exceed or circumvent limitations on access, calls and use of any API. An Authorized 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 Authorized User.

3.Customer Systems. Customer shall ensure that all Customer Systems (a) have antivirus protection with the most current patches and updates, and have been hardened for security by removing all unsecure and unnecessary services that may have the capability to extract, store or manipulate EcoOnline’ 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 EcoOnline from time-to-time.

4.Customer Data. Customer will not, nor will it permit its Users or any third parties to, or otherwise attempt to, upload, input, transmit, activate, process provide or make available via the Services or otherwise to EcoOnline any Customer Data that (a) contains any Harmful Code; (b) is discriminatory, hateful, threatening, abusive, harassing, defamatory, libelous, obscene, deceptive, or fraudulent; (c) constitutes unsolicited commercial electronic messages, bulk e-mail, junk mail, or spam; (d) contains any personal or protected health information; (e) otherwise violates the Agreement; or (f) infringes, misappropriates or otherwise violates any Intellectual Property Right, right of confidentiality, right of privacy, right of publicity or other rights of any third party, or violates any applicable law, rule or regulation.

PREVIOUS VERSIONS:

September 21, 2023

January 26, 2023

July 7, 2020


Thank You for subscribing to our Website.

You've been added to our distribution list.