1. DEFINITIONS. The following terms have the meanings shown below:
“Affiliate” means any entity, including but not limited to any corporation, limited liability company, partnership, or joint venture, controlled by, under common control with, or controlling, the entity in relation to which the term “Affiliate” is used, with “control” being defined as owning, directly or indirectly, fifty percent (50%) or more of the assets or the outstanding shares having voting rights, or otherwise having the right, either by contract or otherwise, to control the operation, management, or policy of such entity.
“Anonymized Data” means any data, information or statistics generated pursuant to the Subscription Services, provided that such data, information or statistics contain no (i) Personal Data, or (ii) anything that could be used to connect such data, information or statistics to Subscriber or its Affiliates or identify Subscriber or its Affiliates.
“Backups” means copies of all Subscriber Data or information residing on Provider’s servers on magnetic or other media in accordance with industry standards.
“Claims” means any of the following, including any combination thereof: causes of action (in rem or in personam), assertions, demands, allegations, proceedings, suits, losses, liabilities, fines, penalties, costs, damages, judgments, awards, and expenses, including court costs and legal fees, and sums paid by way of settlement and compromise.
“Commencement Date” means the date Subscriber first accesses the Systems to commence Using the Subscription Services.
“Confidential Information” means all nonpublic or proprietary information provided by or obtained by a Party (the “receiving Party”) from the other Party (the “disclosing Party”) and that is: (i) identified in writing as confidential at the time of disclosure, whether in printed, textual, graphic, or electronic form; or (ii) disclosed in nontangible form, identified as confidential at the time of disclosure, summarized subsequently in writing and designated as "confidential", such summarization being delivered to the receiving Party promptly after the disclosure; or (iii) knowledge or know-how, or other confidential information, that the disclosing Party desires to protect against disclosure or competitive use, and that, at the time of disclosure, would reasonably be understood by the receiving Party to be proprietary or confidential. Confidential Information does not include information that: (a) has become public knowledge through no fault of the receiving Party; (b) was lawfully known to the receiving Party, free of any confidentiality obligations, before its disclosure by the disclosing Party; (c) becomes lawfully known to the receiving Party, free of any confidentiality obligations, from a source other than the disclosing Party; (d) is independently developed by a Party without use of the other Party’s Confidential Information; or (e) is Anonymized Data.
“Force Majeure” means the failure or delay to provide services that is caused by or results from acts beyond the Provider’s reasonable control.
“Party” or “Parties” has the meaning where Subscriber and Provider are sometimes referred to individually (a “Party”) or collectively (“Parties”).
“Personal Data” means any first or last name, home or other physical address, email address, instant messaging identifier, telephone number, other information that allows physical or online contacting of an individual, an individual’s passport number, driver’s license number, social security or social insurance number, gender, age, racial, ethnic, or other identity, financial, health, medical, or insurance information (including insurance policy number), photograph or image, credit, debit, or other payment card number, bank account number, passwords, personal identification numbers, or other access codes for financial accounts, information from a financial application, employment information, employment history, employee identification number, biometric identification data, or other individually identifiable information that may be accessible to Provider as a result of Subscriber using the Subscription Services.
“Provider” means (i) IronSight USA, operating as IronSight, in the United States, or (ii) Pack Energy Services Ltd, operating as IronSight, in Canada.
“Provider Technology” means all of Provider’s intellectual property and proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs, documentation, and other tangible or intangible technical material or information) made available to Subscriber by Provider in providing the Subscription Services.
“Software as a Service” or “SaaS” means the online or web-based Software-as-a-Service Provider is in the business of developing, marketing, and licensing.
“Subscriber” (i) has the meaning provided in the Agreement; and (ii) means, in respect of a particular Work Order, both before and after its execution, the entity identified as “Subscriber” in that Work Order.
“Subscriber Data” means any technology, intellectual property, data, information, or material provided or submitted by Subscriber or its Affiliates to the Systems in the course of using the Subscription Services. Subscriber Data includes Personal Data.
“Subscription Services” means the services provided by Provider to Subscriber based on the functionality developed, operated, maintained, and hosted by Provider and made accessible via a designated website or IP address for the SaaS, and ancillary online or offline products and services provided to Subscriber by Provider, to which Subscriber is being granted access under the Agreement and any specific Work Order, including the Provider Technology and the Systems, as such services are set forth in Exhibit A.
“Systems” means the application software, network servers, hardware, software, and data operations utilized by Provider for the provision of Subscription Services.
“Use” means access by an Authorized User to the functionality of the Subscription Service through Provider’s designated website for the purpose of accessing Subscriber-controlled data.
3. ACCESS TO SERVICES AND USE
3.1. Provider shall make the Subscription Services accessible for access and Use by Subscriber either:
A. Free of charge where Provider may from time to time set limits on the Subscription Services available to Subscriber; or
B. Upon payment (in full or regular installment) of the fees for the Subscription Services as set out in an Agreement or Work Order.
3.2. Subscriber is responsible for arranging for necessary hardware and Internet connectivity to the Subscription Services at the Provider’s designated secure website for which Provider shall provide any necessary instructions.
3.3. Subscriber shall not include in Subscriber Data any Personal Data of Authorized Users other than first and last name, email address, and telephone number.
3.5. Subscriber is entirely responsible for maintaining the confidentiality of any passwords and account information required for access to the Subscription Services, and for all acts by Subscriber or anyone authorized by Subscriber to access Subscriber’s account that occur in connection with Subscriber’s account. Subscriber shall notify Provider of any unauthorized use of Subscriber’s account, breach of security, or loss or theft of usernames or passwords promptly upon discovery of such unauthorized use, breach, loss, or theft.
3.6. Subscriber is not to use the Subscription Services for any purpose that is (i) unlawful; or (ii) not in accordance with the terms of the Agreement.
3.7. Subscriber is not to attack or use the Subscription Services in any way that could damage, disable, disrupt, impair, overburden, or otherwise interfere with the proper working of the Subscription Services.
3.8. Subscriber is not to reverse-engineer, disassemble, decompile, or make any attempt to discover the source code of the Subscription Services and is not to sell, sublicense, rent, or lease any portion thereof.
3.9. Subscriber is not to access or use the Subscription Services for purposes of competitive analysis of the Subscription Services or the development, provision or use of a competing software service or product, or any other purpose that is to the Provider’s detriment or commercial disadvantage.
3.10. Not withstanding anything to the contrary contained in the Agreement, Provider will be entitled to copy, produce, reproduce, convert, transfer, display, use and process all Anonymized Data and with respect to any Anonymized Data owned by Subscriber. License hereby grants to Provider a non-exclusive, perpetual, irrevocable, worldwide, sublicensable and royalty free license to Use such Anonymized Data.
4. LICENSE GRANT AND ASSIGNMENT
4.1. In consideration of the fees that Subscriber is to pay to Provider as set forth in the Agreement or applicable Work Order, Provider shall grant to Subscriber and Subscriber will accept a revocable, non-transferable, nonexclusive, license for Subscriber and Authorized Users to access and use the Subscription Services set forth in the Agreement or applicable Work Order. Subscriber agrees that only Authorized Users are to access and use the Subscription Services.
4.2. The Agreement and any Work Orders cannot be assigned by either Party without the prior written consent of the other Party. Notwithstanding the foregoing, (a) either Party may, without such prior approval, assign this Agreement in whole or in part to (i) any entity controlling, controlled by or under common control with that Party; (ii)by reason of merger, amalgamation, consolidation, reorganization or similar transaction, or in connection with the acquisition of a majority of that Party’s voting shares; or (iii) to any acquirer of all or of substantially all of that Party’s assets or equity securities; provided, that in the event of each of (i), (ii) or (iii) that Party provides to the other Party with written notice of such transaction and causes such entity to assume that Party’s obligations hereunder. Any assignment or transfer of this Agreement or any Work Order made in contravention of the terms hereof will be null and void. Subject to the foregoing, this Agreement will be binding on and inure to the benefit of the Parties' permitted assigns.
5.1. Subject to the rights expressly granted hereunder to Subscriber, Provider shall retain all right, title and interest in and to the Subscription Services, and all modifications, additions, improvements and enhancements thereto, whether developed by Subscriber or Provider, including all related intellectual property rights (the “Improvements”). No rights are granted to Subscriber hereunder other than as expressly set forth herein.
5.2. Subscriber shall own all right, title and interest in the Improvements, including but not limited to all intellectual property rights therein. Subscriber hereby transfers and assigns to Provider all right, title and interest in and to the Improvements, including all intellectual property rights therein.
5.3. Subject to Section 3.10, all right, title, and interest in and to the Subscriber Data and results from processing Subscriber Data are and will remain the property of Subscriber or its Affiliates and no right, title, or interest in and to Subscriber Data ort e results from processing Subscriber Data is to vest in Provider.
6.1. Each Party shall protect the Confidential Information of the other Party against disclosure using at least the same means it uses to protect its own Confidential Information, but in any event not less than reasonable means to prevent disclosure and to protect confidentiality. If a Party is required to disclose any of the other Party’s Confidential Information, by applicable law or by the rules of a recognized stock exchange on which a Party is listed, that Party shall notify the other Party through reasonable commercial efforts and limit any such disclosure to the minimum amount of information necessary to comply with the legal obligation.
6.2. Provider shall have the right to share, release, or publicize the name and operating location(s) of the Subscriber in connection with the Agreement or any specific Work Order. This includes but is not limited to issuing a press release, inclusion in marketing material, or sharing via physical and electronic media, publications, or other means.
6.3. Apart from the allowances permitted under Section 6.2 each Party shall not release or allow the release of any information to the press, any news disseminating agency, or any communications media, except as required by law, concerning the details of any Work Order. In each instance, release of such information requires the prior written consent of the other Party. A Party may, in its absolute discretion, decline to provide such consent, or make its consent conditional upon certain changes to the intended release, including for compliance with only the minimum legal requirements.
7. SECURITY, BACKUPS, AND RECORDS RETENTION
7.1. Provider shall maintain comprehensive data security programs, which are to include reasonable and appropriate technical, organizational, administrative, and other security measures to guard against the destruction, loss, or alteration of, and unauthorized access to, Subscriber Data in the possession of Provider or its employees.
7.2. Provider shall maintain Backups to ensure that Provider can restore the Systems and Subscription Services such that, upon a recovery from a failure or disaster, Subscriber Data will be restored to a point no more than twenty-four (24) hours before the failure or disaster.
7.3. Subscriber acknowledges that data loss may occur in the event of a failure or disaster. Provider recommends Subscriber regularly back up content and data stored on the Subscription Services.
7.4. Provider shall comply with all applicable laws concerning records retention that may apply to records used or created in connection with the Subscription Services.
8. TECHNICAL SUPPORT, AVAILABILITY, AND MODIFICATIONS
8.1. Provider shall provide email and online helpdesk support (“Technical Support”) Monday to Friday from8 AM to 5 PM Mountain Time. Provider may choose to provide support outside of these hours at its sole discretion.
8.2. Provider’s objective is to have the Subscription Services accessible to Authorized Users twenty-four (24) hours a day, seven (7) days a week, except for any interruption due to causes beyond the control of Provider or which are not reasonably foreseeable by Provider, including, but not limited to, interruption or failure of telecommunication or digital transmission links and internet slow-downs or failures, or events of Force Majeure.
8.3. Provider has the right in its sole discretion to upgrade, update, change, modify, or remove the Subscription Services or any portion thereof in any manner at any time with or without notice to Subscriber.
9.2. Upon termination or expiration of the Agreement or a Work Order, all rights, licenses, consents, and authorizations granted by Provider to the Subscriber hereunder will immediately terminate.
9.3. If Provider terminates the Agreement or a Work Order under Section 9.1 all fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Subscriber shall pay such fees, together with all previously accrued but not yet paid fees, on receipt of Provider's invoice therefor.
9.4. The provisions of Article 6 apply with respect to termination of any Work Order for Subscription Services.
9.5. The terms of the Agreement or applicable Work Order which by their nature are intended to survive expiration or termination of the Agree mentor applicable Work Order are to survive accordingly.
10. GOVERNING LAW AND DISPUTE RESOLUTION
10.1. The interpretation and performance of the Agreement and of each Work Order issued hereunder are governed by and to be construed in accordance with the laws of either (i) the Province of Alberta if Subscriber is in Canada; or (ii) the State of Texas if Subscriber is in the United States.
10.2. The Parties specifically agree that, if any provision of the Agreement or a Work Order is determined to be unenforceable or in contravention of any applicable law, such provision is to be deemed modified to the minimum extent required to bring such provision into compliance with said statute or case law and the parties’ intent, provided that nothing contained herein is to be construed as contravening the express intention of the parties that the laws of either(i) the Province of Alberta if Subscriber is in Canada; or (ii) the State of Texas if Subscriber is in the United States, are to apply in all respects.
10.3. The Agreement is not to be governed by the United Nations Convention on Contracts for the International Sales of Goods, the application of which is expressly excluded.
10.4. With respect to any actions at law or in equity and proceedings arising out of or related, in whole or in part, to any dispute or Claim in connection with the Agreement or any Work or their subject matter or formation (including non-contractual disputes or Claims) (collectively “Agreement Claims”) are to be heard and determined in either (i) the provincial or federal courts of Edmonton, Alberta if Subscriber is in Canada; or (ii) the state or federal courts of Harris County, Texas if Subscriber is in the United States. The Parties hereby irrevocably submit to the exclusive jurisdiction of such courts (and, in the case of appeals, the appropriate appellate courts) in any such action or proceeding and irrevocably waive the defenses of lack of personal jurisdiction or any inconvenient forum to the maintenance of any such action or proceeding.
Subscriber shallindemnify, defend, and hold harmless Provider, its subcontractors and each of theirrespective officers, directors, employees, agents, successors, and permittedassigns from and against any and all Claims arisingout of or related to Subscriber Data (or any othermaterials or information provided by Subscriber pursuant to theAgreement), including any processing of Subscriber Data or other information byor on behalf of Provider in accordance with theAgreement.
12.1. Limitations on Warranties. SINCE THE SUBSCRIPTION SERVICES ARE PROVIDED ON AN “AS IS, WHERE IS” BASIS, PROVIDER HEREBY DISCLAIMS ANY AND ALL WARRANTIES INCLUDING ANY IMPLIED OR STATUTORY CONDITIONS AND WARRANTIES, AND INCLUDING MERCHANT ABILITY AND FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE SUBSCRIPTION SERVICES WILL (A) MEET SUBSCRIBER'S REQUIREMENTS; (B) OPERATE WITHOUT INTERRUPTION; (C) ACHIEVE ANY INTENDED RESULT; OR (D) BE COMPLETE OR ERROR FREE (E) NOT MISAPPROPRIATE OR INFRINGE THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.
12.2. Internet Delays. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. PROVIDER IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. PROVIDER IS ALSO NOT RESPONSIBLE FOR ANY DELAYS OR PROBLEMS ARISING FROM ANY FAILURE BY SUBSCRIBER TO PERFORM ITS OBLIGATIONS UNDER THE AGREEMENT.
12.3. Exclusive Remedies. Subscriber's exclusive remedies and Provider's entire liability for any breach of the warranties specified in this Section 12, except as expressly provided otherwise in the Agreement, will be the correction of the breach of warranty.
13. LIMITATION OF LIABILITY
IN NO EVENT SHALL PROVIDER BE LIABLE TO SUBSCRIBER FOR ANY CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES, OR FOR ANY LOST PROFITS, LOST SAVINGS, LOST PRODUCTION, OR COST OF PROCURING SUBSTITUTE SOFTWARE OR SERVICES.
14.5. Notices. All notices and other communications required by the Agreement or a Work Order are to be in writing and will be effective upon receipt. Such notices and communications are to begiven by email to the address of the Party found on the Agreement or applicable Work Order. Either Party may, at any time, change its notice address and details by written notice to the other Party in accordance with this Section 14.5.
14.6. Account and Marketing Communications. Subscriber agrees that Subscriber and Authorized Users shall receive communication in relation to their account and Subscriber Data. Subscriber and Authorized Users may from time to time receive communications related to advertisements, events, promotions, products, and services offered by Provider (“Marketing Communications”) and shall have the option to opt-out of Marketing Communications at any time.
14.8. Survival. Notwithstanding any provisionof the Agreement to the contrary, the expiration or termination of theAgreement will not relieve the Parties of any obligations that, by theirnature, survive such expiration or termination, including without limitationany warranties, dispute resolution procedures, and obligations under Article 6 withrespect to confidential information.