Updated: March 02, 2022
Thanks for using ProcedureFlow! These Terms of Service cover your use and access to our ProcedureFlow software and related services. Your agreement is with GEMBA Software Solutions Inc., the company which owns ProcedureFlow and its related services. By signing up to use ProcedureFlow, you're agreeing to be bound by these Terms of Service. If you're using ProcedureFlow for an organization, you're agreeing to these Terms on behalf of that organization.
These Terms of Service for ProcedureFlow is between GEMBA Software Solutions Inc. ("Us") and the organization agreeing to these terms ("You"). This Agreement governs access to and use of the Procedure software and related services. If you register for a trial of the Services, this Agreement will also govern that trial.
BY ACCEPTING THIS AGREEMENT, EITHER BY INDICATING YOUR ACCEPTANCE ON SIGNING UP OR SIGNING IN TO THE SERVICES AND CONTENT, AS DEFINED BELOW, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
You may not access the Services if You are Our direct competitor, except with Our prior written consent. In addition, You may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
This Agreement is effective between You and Us as of the date of You accepting this Agreement (the “Effective Date”).
Table of Contents
- 1. Definitions
- 2. Trial Period
- 3. Our Responsibilities
- 4. Use of the Services and Content
- 5. Fees and Payment for Services
- 6. Proprietary Rights and Licenses
- 7. Confidentiality
- 8. Representations, Warranties, Exclusive Remedies and Disclaimers
- 9. Mutual Indemnification
- 10. Limitation of Liability
- 11. Term and Termination
- 12. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
- 13. General Provisions
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
“Agreement” means these Terms of Service.
"Beta Software" means pre-release versions of additional features and functionality, which are not available for public release, including modifications, enhancements, improvements, updates and related material.
“Content” means information obtained by Us from Our content licensors or publicly available sources and provided to You pursuant to an Order Form.
“Documentation” means Our online user guides, documentation, and help and training materials, as updated from time to time, accessible via help.procedureflow.com.
“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.
“Order Form” means an ordering document specifying the Services to be provided hereunder that is entered into between You and Us or any of Our Affiliates, including any addenda and supplements thereto. By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.
“Services” means the products and services that are ordered by You under a free trial, by signing up or signing into ProcedureFlow, or purchased by You under an Order Form and made available online by Us, including all associated offline components. “Services” excludes Content.
“Professional Services” means the training, consulting, mapping, best practices and implementation of the purchased Services and Content, as well as any advice, consultations and recommendations provided by Us in connection therewith.
“User” means (a) an individual who is authorized by You to use a Service, for whom You have ordered the Service, and to whom You (or We at Your request) have supplied a user identification and password, or (b) an individual to whom You have supplied and made available any associated offline components of the Services. User may include Your employees, consultants, independent contractors and agents, and third parties with whom You transact business.
“We,” “Us” or “Our” means GEMBA Software Solutions Inc. as described in Section 12 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.
“Your Data” means electronic data and information submitted by or for You to Us or collected and processed by or for You using the Services, excluding Content.
2. TRIAL PERIOD
If You register on our website, procedureflow.com, for a trial, We will make one or more Services available to You on a trial basis until the earlier of (a) the end of the trial period for which you registered to use the applicable Service(s), or (b) the start date of any purchased subscriptions ordered by You for such Service(s). Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.
Please review the Documentation found at help.procedureflow.com during the trial period so that You become familiar with the features and functions of the Services before You make Your purchase.
3. OUR RESPONSIBILITIES
3.1. Provision of Services. We will (a) make the Services and Content available to You pursuant to this Agreement and any applicable Order Forms, (b) provide Our standard support for the Services to You at no additional charge, (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for: (i) planned downtime, and (ii) any unavailability caused by circumstances beyond Our reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Our employees), Internet service provider failure or delay, denial of service attack, or necessary security patches, and (d) provide You with self-service User administration access allowing for the addition and/or removal of Users by You at any given time. In order to maintain performance and security of the Services and Content in accordance with this Section 3.1, We will from time to time be required to perform scheduled maintenance. This may require some or all of the Services and Content to become unavailable during the maintenance period. We will use commercially reasonable efforts to notify You fourteen (14) calendar days in advance of any scheduled maintenance that may adversely affect Your use of the Services and Content. Notwithstanding the above, emergency maintenance and re-scheduled planned maintenance may be performed on an immediate and as needed without any prior notice.
3.2. Protection of Your Data. We will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, as described in the Documentation. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Your Data by Our personnel except (a) to provide the Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 7.3 (Compelled Disclosure) below, or (c) as You expressly permit in writing.
3.3. Our Personnel. We will be responsible for the performance of Our personnel (including Our employees and contractors) and their compliance with Our obligations under this Agreement, except as otherwise specified herein.
4. USE OF SERVICES AND CONTENT
4.1. Subscriptions. Unless otherwise provided in an Order Form, (a) Services and Content are purchased as subscriptions, (b) each subscription shall commence on the Effective Date of this Agreement and span for a period of twelve months (the “Subscription Term”), (c) additional Users may be added during a Subscription Term, at the same pricing as the underlying subscription pricing, and (d) any added User subscriptions will terminate on the same date as the underlying subscriptions. All User subscriptions shall terminate on the earlier of (i) the termination of this Agreement, or (ii) upon notice of subscription termination provided by You to Us within 30 days of the Subscription Term end date. Unless terminated in accordance with this section, all User subscriptions will be automatically renewed upon the automatic renewal of this Agreement as outlined in section 11.1 hereof.
4.2. Usage Limits. Services and Content are subject to usage limits, including any quantities specified in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service or Content may not be accessed by more than that number of Users, and (b) a User’s password may not be shared with any other individual. If You exceed the contractual usage limit, We will invoice You for each additional user at the standard pricing rate in effect, unless otherwise provided in an Order Form. Any invoices for excess usage are to be paid by You in accordance with Section 5.2 (Invoicing and Payment).
4.3. Your Responsibilities. You will (a) be responsible for Your Users’ compliance with this Agreement, (b) be responsible for the accuracy, quality and legality of Your Data and the means by which You acquired Your Data, (c) use commercially reasonable efforts to prevent unauthorized access to or improper use of the Services and Content, and notify Us promptly of any such unauthorized access or improper use, and (d) use the Services and Content only in accordance with the Documentation and all applicable laws and government regulations.
4.4. Usage Restrictions. You will not (a) make any Services or Content available to, or use any Services or Content for the benefit of, anyone other than You or Your Users, (b) sell, resell, license, sublicense, distribute, rent or lease any Services or Content, or include any Services or Content in a service bureau or outsourcing offering, (c) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use the Services to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein, (f) attempt to gain unauthorized access to the Services or Content or its related systems or networks, (g) permit direct or indirect access to or use of the Services or Content in a way that circumvents a contractual usage limit, (h) copy the Services or any part, feature, function or user interface thereof without Our express prior written consent, (i) copy Content except as permitted herein or in an Order Form or the Documentation without Our express prior written consent, (j) frame or mirror any part of the Services or Content, other than framing on Your own intranets or otherwise for Your own internal business purposes or as permitted in the Documentation, (k) access any Services or Content in order to build a competitive product or service, or (l) reverse engineer any Service (to the extent such restriction is permitted by law). You will not:
- probe, scan, or test the vulnerability of Our systems or network;
- breach or otherwise circumvent Our security or authentication measures;
- access, tamper with, or use non-public areas or parts, or shared areas of the Services that You haven't been invited to;
- interfere with or disrupt any user, host, or network, for example by sending a virus, overloading, flooding, etc. any part of the Services;
- access, search, or create accounts for the Services by any means other than our publicly supported interfaces (for example, "scraping" or creating accounts in bulk);
- circumvent any contractual usage limits set out herein;
- publish or share materials that are unlawfully pornographic or indecent, or that contain extreme acts of violence;
- advocate bigotry or hatred against any person or group of people based on their race, religion, ethnicity, sex, gender identity, sexual preference, disability, or impairment;
- violate the law in any way, including storing, publishing or sharing material that's fraudulent, defamatory, or misleading; or
- violate the privacy or infringe the rights of others.
4.5. Removal of Content. If We are required by a licensor to remove Content, or receive information that Content provided to You may violate applicable law or third-party rights, We may so notify You and in such event You will promptly remove such Content from Your systems. If You do not take required action in accordance with the above, We may disable the applicable Content and Service until the potential violation is resolved. In the event Our content removal prevents the use of Services by You, We will refund You the total prepaid usage fees associated with the number of days the Services remain unusable and/or unavailable to You due to Content removal by Us.
4.6. Professional Services. You may choose to engage Us from time to time to provide Professional Services on matters related to the use and implementation of the Services and Content. Professional Services will be provided to You in accordance with the terms and conditions outlined in this Section 4.6.
- Performance. We will endeavor to complete the Professional Services within the agreed upon time-frame. We will not be liable for failures or delays in performance that arise from causes beyond Our control, including the untimely performance by You of Your responsibilities as set out in this Section 4.6. We warrant that the Professional Services shall be performed in a workmanlike and professional manner, by personnel with the degree and level of skill and expertise commensurate with the requirements and complexity of the Professional Services to be provided. We agree to promptly replace any personnel assigned pursuant to this Agreement who is not acceptable to You. If any element of the Professional Services, or the results and outcomes thereof, are found to be unsatisfactory, You will notify Us in writing, and We shall promptly re-perform the Professional Services. If this remedy is impracticable, You shall be entitled to remedy the Professional Services, or the results and outcomes thereof, in any other manner You may determine.
- Your Responsibilities. You shall cooperate with Us in the performance of the Professional Services, including, without limitation, providing Us with reasonable facilities and timely access to data, information, documentation, knowledge base(s) and knowledge management tools (including Your instance of the purchased Services and Content) and to required personnel. You shall be responsible for the performance of Your personnel and agents, and for the accuracy and completeness of all data and information provided to Us for the purpose of providing the Professional Services. To the extent We have access to or use of Your facilities, and/or computer and network resources, We agree to comply at all times with all applicable rules and regulations regarding the safety, security, use and conduct thereof. In addition, You shall be solely responsible for, among other things: (i) designating a senior and competent employee to oversee the Professional Services; (iii) evaluating the adequacy and results of the Professional Services; (iv) accepting responsibility for the final results and outcomes of the Professional Services; and (v) establishing and maintaining internal controls, including, without limitation, monitoring ongoing activities to ensure the results and outcomes of the Professional Services are maintained.
- Access and Reliance on Information. In providing the Professional Services to You, We will rely on information that is publicly available, and information that is prepared or supplied by You and/or Your affiliates. We shall be entitled to rely on, and shall be under no obligation to verify the accuracy or completeness of such information, and We shall have no responsibility for the accuracy or completeness of the information provided by, or on behalf of, You or Your affiliates. Further, We are under no obligation to investigate any changes that may occur in such information subsequent to the date thereof. You hereby represent and warrant that all information provided to Us, directly or indirectly, orally or in writing, by You or your agents, affiliates or advisors in connection with the Professional Services will be accurate and complete in all materials respects, to the best of your knowledge.
- Non-Exclusivity. Having engaged Us solely for the provision of the Professional Services relating to the use and implementation of the purchased Services and Content, You agree on your own behalf and on behalf of Your affiliates that We are not precluded from acting in any capacity for any other third party, and that Your engagement of Our personnel in this matter will not be asserted by You as a basis for disqualifying Us from acting for any other third party.
- Confidential. To the extent that, in connection with the Professional Services, We come into possession of Confidential Information, We shall fulfil our obligations with respect to the protection, use and non-disclosure thereof imposed by Section 7 of this Agreement.
- Limitation on Use. Except as otherwise agreed in writing, all Professional Services provided in connection with this Agreement shall be solely for Your internal purposes and use, and are not intended for the express or implied benefit of any third party. No third party is entitled to rely, in any manner or for any purpose, on the advice, consultations, recommendations and other materials provided by Us during the performance of the Professional Services.
- Travel and Expenses. You will also reimburse Us for all reasonable out of pocket expenses incurred in connection with the provision of the Professional Services under this Agreement, including travel, meals and lodging. Such expenses will be stated separately on all invoices.
- Records and Reports. We shall maintain complete and accurate records of the Professional Services performed hereunder, including amounts invoiced and hours worked. Such records shall be in accordance with standard accounting practices. At Your written request, such records shall be made available for Your inspection and audit at Our place of business during normal business hours at any time during the term of this Agreement.
- Non-Solicitation of Personnel. The Parties agree not to solicit, hire or otherwise retain the other party’s personnel for a period of six (6) months following the completion of this Professional Services engagement. This provision may be waived upon written agreement between the Parties. This provision shall not restrict the right of either party to solicit or recruit generally in the media, or as part of general recruiting efforts by third party recruiters, and shall not prohibit either party from hiring an employee of the other who answers any advertisement, responds to such general recruiting efforts, or who otherwise voluntarily applies for hire without having been initially personally solicited or recruited by the other party.
5. FEES AND PAYMENT FOR SERVICES
5.1. Fees. You will pay all fees specified in the Order Form. Fees will be billed on an annual basis and are non-refundable, unless this Agreement is terminated for cause pursuant to Section 11.3.
5.2. Invoicing and Payment. You may provide a valid purchase order or alternative document reasonably acceptable to Us. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for providing complete and accurate billing and contact information to Us and notifying Us of any changes to such information.
5.3. Overdue Charges. If any invoiced amount is not received by Us by the due date, then without limiting Our rights or remedies, those charges may accrue late interest at the rate of 1% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower.
5.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue, We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full. We will give You at least 10 days’ prior notice that Your account is overdue, in accordance with Section 12.2 (Manner of Giving Notice), before suspending the Services.
5.5. Payment Disputes. We will not exercise Our rights under Section 5.3 (Overdue Charges) or Section 5.4 (Suspension of Service and Acceleration) above if You are disputing the applicable charges reasonably and in good faith and are cooperating diligently to resolve the dispute.
5.6. Future Functionality. You agree that Your purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Us regarding future functionality or features, unless otherwise stated in an Order Form.
6. PROPRIETARY RIGHTS AND LICENSES
6.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We and Our licensors reserve all of Our/their right, title and interest in and to the Services and Content, including all of Our/their related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
6.2. License by Us to Use Content. We grant to You a worldwide, limited-term license, under Our applicable intellectual property rights and licenses, to use Content acquired by You, subject to this Agreement, any relevant Order Forms, and the Documentation.
6.3. License by You to Host Your Data. You grant Us and Our Affiliates a worldwide, limited-term license to host, copy, transmit and display Your Data, as necessary for Us to provide the Services in accordance with this Agreement. Subject to the limited licenses granted herein, We acquire no right, title or interest from You or Your licensors under this Agreement in or to Your Data.
6.4. License by You to Use Feedback. You grant to Us and Our Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services any suggestion, enhancement request, recommendation, correction or other feedback provided by You or Users relating to the operation of the Services.
6.5. Use of Name and Logo.You grant GEMBA the express right to use Your company name and logo in GEMBA marketing, sales, social media, public relations materials and other communications and materials solely for the purpose of identifying You as a ProcedureFlow customer, including but are not limited to, print and digital brochures, videos, the procedureflow.com website, social media posts and print advertising. Such marketing materials may be developed, disseminated and used without Your review.
6.6. Beta Software Testing.To test Beta Software prior to public release, We may invite You to participate in user testing, the purpose of which is to obtain feedback on software performance and the identification of defects. In the event You agree to serve as a test user for the Beta Software, Your participation is subject to the terms and conditions, and disclaimers of this Section 6.5:
- License Grant. We grant to You a non-exclusive, non-transferable, revocable license to use the Beta Software solely for Beta testing and use until the earlier of: the end of the testing period as agreed to by the Parties, or until the official release date of the generally available commercial version.
- Feedback. In consideration for receiving access to the Beta Software for testing, You agree to provide us with feedback, comments or enhancement suggestions on the Beta Software (the “Feedback”) and hereby assign to Us all rights, title and interest to such ideas for enhancements, including any product enhancements developed as a result of such ideas.
- No Warranty. Beta Software is pre-release code and is not at the level of performance or compatibility of a final, generally available commercial product. The Beta Software may be substantially modified prior to being made available for public release, may never be released, or may be withdrawn after public release. You acknowledge that We are under no obligation to continue to develop, productize, support, repair, offer for sale or in any other way continue to provide or develop Beta Software to You or any other party. Beta Software is provided “AS IS” without warranty of any kind, including without limitation, any warranty as to performance, noninfringement of third party rights, merchantability, or fitness for a particular purpose. In no event shall We be liable for any damage whatsoever arising out of the use of or inability to use the Beta Software, including without limitation, any direct, indirect, consequential, exemplary, special, incidental or punitive damages, or damages for lost data or lost profits, even if We have been advised of the possibility of such damages.
- Excluded from Original License. You acknowledge that the Beta Software is absolutely excluded from the license to use the Services and Content granted by Us to You pursuant to Section 6.2 of this Agreement. If a version of the Beta Software is made publicly available, We may in Our discretion choose to offer said version as an enhancement, feature or tier that is available only at an additional cost. If You choose to continue Your use of the Beta Software after it has been made available for public release, any additional fees associated with said version will be added to your next invoice.
7.2. Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information includes Your Data; Our Confidential Information includes the Services and Content and all Beta Software; and Confidential Information of each party includes the terms and conditions of this Agreement and all Order Forms (including pricing), as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
7.3. Protection of Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) (i) not to use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and (ii) except as otherwise authorized by the Disclosing Party in writing, to limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this Section 7.2.
7.4. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS
8.1. Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.
8.2. Our Warranties. We warrant that (a) this Agreement, Order Forms and the Documentation accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, (b) We will not materially decrease the overall security of the Services during the Subscription Term, (c) the Services will perform materially in accordance with the applicable Documentation, (d) we will not materially decrease the functionality of the Services during the Subscription Term, and (e) the Services and Content will not introduce Malicious Code into Your systems. In the event We breach one of these warranties, We will refund to You the amount paid by You that is directly related to the breach(es). The refund is Your exclusive remedy for such breach(es).
8.3. Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” EXCLUSIVE OF ANY WARRANTY WHATSOEVER. EACH PARTY DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR ANY HARM OR DAMAGES CAUSED BY ANY THIRD-PARTY HOSTING PROVIDERS.
9. MUTUAL INDEMNIFICATION
9.1. Indemnification by Us. We will defend You against any claim, demand, suit or proceeding made or brought against You by a third party alleging that the use of the Services and Content in accordance with this Agreement infringes or misappropriates such third party’s intellectual property rights (a “Claim Against You”), and will indemnify You from any damages, attorney fees and costs finally awarded against You as a result of, or for amounts paid by You under a court-approved settlement of, a Claim Against You, provided You (a) promptly give Us written notice of the Claim Against You, (b) give Us control of the defense, with Your oversight, and settlement of the Claim Against You (except that We may not settle any Claim Against You unless it unconditionally releases You of all liability), and (c) give Us all reasonable assistance, at Our expense. If We receive information about an infringement or misappropriation claim related to a Service, We may in Our discretion and at no cost to You (i) modify the Service so that it no longer infringes or misappropriates, without breaching Our warranties under Section 8.2 (Our Warranties), (ii) obtain a license for Your continued use of that Service in accordance with this Agreement, or (iii) terminate Your subscriptions for that Service upon 30 days’ written notice and refund You any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against You arises from Your breach of this Agreement.
9.2. Indemnification by You. You will defend Us against any claim, demand, suit or proceeding made or brought against Us by a third party (i) arising directly or indirectly through Your violation of the Use Restrictions set out in Section 4.4 above; or, (ii) alleging that Your Data, or Your use of any Service or Content in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim Against Us”), and will indemnify Us from any damages, attorney fees and costs finally awarded against Us as a result of, or for any amounts paid by Us under a court-approved settlement of, a Claim Against Us, provided We (a) promptly give You written notice of the Claim Against Us, (b) give You sole control of the defense and settlement of the Claim Against Us (except that You may not settle any Claim Against Us unless it unconditionally releases Us of all liability), and (c) give You all reasonable assistance, at Your expense.
9.3. Exclusive Remedy. This Section 9 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 9.
10. LIMITATION OF LIABILITY
10.1. Limitation of Liability. NEITHER PARTY'S LIABILITY WITH RESPECT TO ANY SINGLE INCIDENT ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL EXCEED THE AMOUNT PAID BY YOU HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT, PROVIDED THAT IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY YOU HEREUNDER. THE ABOVE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY. HOWEVER, THE ABOVE LIMITATIONS WILL NOT LIMIT YOUR PAYMENT OBLIGATIONS UNDER SECTION 5 (FEES AND PAYMENT FOR SERVICES).
10.2. Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS, REVENUES OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.
10.3 The parties agree that no action may be commenced against their respective directors, officers, employees, agents, subcontractors or representatives as a result of a claim arising under this Agreement. FURTHERMORE, THE LIMITATIONS AND EXCLUSIONS FROM LIABILITY HEREIN SHALL APPLY REGARDLESS OF THE BASIS OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, ANY CLAIM OF FUNDAMENTAL BREACH OF CONTRACT, AND SHALL APPLY FOR THE BENEFIT OF EACH PARTY’S DIRECTORS, OFFICERS, EMPLOYEES, AGENTS. SUBCONTRACTORS AND REPRESENTATIVES.
11. TERM AND TERMINATION
11.1. Term of Agreement. This Agreement commences on the Effective Date and continues for a period of 12 months thereafter, renewing automatically for consecutive 12 month periods, unless written notice of termination is provided by a party, at least 30 days before the end of the respective 12 month period. Termination of this Agreement will result in the termination of all subscriptions purchased hereunder.
11.2. Pricing of Purchased Subscriptions on Renewal. The per-unit pricing during any automatic renewal term will be the same as that during the immediately prior term unless We have given You written notice of a pricing increase at least 60 days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter.
11.3. Termination for Cause. A party may also terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Without limited what constitutes a material breach, You hereby agree that any violation of the Use Restrictions set out in Section 4.4 above constitutes a material breach of this Agreement. This Agreement will automatically terminate upon the termination of all User subscriptions by You.
11.4. Refund or Payment upon Termination. If this Agreement is terminated by You in accordance with Section 11.3 (Termination for Cause), We will refund You any prepaid usage fees covering the remainder of the Subscription Term. If this Agreement is terminated by Us in accordance with Section 11.3, You will pay any unpaid usage fees covering the remainder of the Subscription Term. In no event will termination relieve You of Your obligation to pay any fees payable to Us for the period prior to the effective date of termination.
11.5. Your Data Portability and Deletion. Upon request by You made within 30 days after the effective date of termination of this Agreement, We will make Your Data available to You for export or download. After that 30-day period, We will have no obligation to maintain or provide Your Data, and will thereafter delete or destroy all copies of Your Data in Our systems or otherwise in Our possession or control as provided in the Documentation, unless legally prohibited. For certainty, We will provide You with a one-time notice prior to the expiry of the 30-day period.
11.6. Surviving Provisions. The Sections titled "Fees and Payment for Purchase Services," "Proprietary Rights and Licenses," "Confidentiality," "Disclaimers," "Mutual Indemnification," "Limitation of Liability," "Refund or Payment upon Termination," "Portability and Deletion of Your Data," "Who You Are Contracting With, Notices, Governing Law and Jurisdiction," and "General Provisions" will survive any termination of this Agreement.
12. WHO YOU ARE CONTRACTING WITH, NOTICES, GOVERNING LAW AND JURISDICTION
12.1. General. Who You are contracting with under this Agreement, who You should direct notices to under this Agreement, what law will apply in any lawsuit arising out of or in connection with this Agreement, and which courts have jurisdiction over any such lawsuit, are set out below.
- You are contracting with GEMBA Software Solutions Inc., a corporation incorporated under the laws of the Province of New Brunswick.
- Notices should be addressed to:
GEMBA Software Solutions Inc.
One Germain Street, Atrium Suites
Saint John, New Brunswick
Canada E2L 4V1
- The governing law is the laws of the province of New Brunswick and controlling Canadian federal law.
- The courts having exclusive jurisdiction are the courts of Saint John, New Brunswick, Canada.
12.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, the second business day after mailing, (iii) the second business day after sending by confirmed facsimile, or (iv) the first business day after sending by email (provided email shall not be sufficient for notices of termination or an indemnifiable claim). Billing-related notices to You shall be addressed to the relevant billing contact designated by You. All other notices to You shall be addressed to the relevant Services system administrator designated by You.
12.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice, or conflicts, of law rules, and to the exclusive jurisdiction of the applicable courts above.
12.4. No Agency. For the avoidance of doubt, We are entering into this Agreement as principal and not as agent for any other company. Subject to any permitted Assignment under Section 13.2, the obligations owed by Us under this Agreement shall be owed to You solely by Us and the obligations owed by You under this Agreement shall be owed solely to Us.
13. GENERAL PROVISIONS
13.1. Entire Agreement and Order of Precedence. This Agreement is the entire agreement between You and Us regarding Your use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. The parties agree that any term or condition stated in Your purchase order or in any other of Your order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) an applicable Order Form, (2) this Agreement, and (3) the Documentation.
13.2. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, We will refund to You any prepaid fees covering the remainder of the term of all subscriptions. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
13.3. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
13.4. Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.
13.5. Remedies Cumulative. No single or partial exercise of any right or remedy under this Agreement shall preclude any other or further exercise of any other right or remedy in this Agreement or as provided at law or in equity. Rights and remedies provided in this Agreement are cumulative and not exclusive of any right or remedy provided at law or in equity.
13.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.
13.7. Modifications. We may revise these Terms of Service from time to time, and will always post the most current version on Our website. If a revision meaningfully reduces your rights, We will notify You (by, for example, sending a message to the email address associated with Your account, posting on Our blog, or on this page). By continuing to use or access the Services after the revisions come into effect, You agree to be bound by the revised terms.