This Agreement (“Agreement”) is between TRADER’S EDGE INC. Inc., an Ontario corporation and “The Subscriber”.
PART ONE – SUBSCRIPTION SERVICES
1. Access to the Subscription Services.
TRADER’S EDGE INC. grants Subscriber a right to receive the Subscription Services.
- The Software is located on servers that are controlled by TRADER’S EDGE INC. Subscriber may access the Software, but has no right to receive a copy of the object code or source code to the Software.
- Subscriber must have a high speed Internet connection, and hardware/software that is compatible with the Subscription Services, as set out in the Documentation. TRADER’S EDGE INC.is not responsible for these requirements.
- TRADER’S EDGE INC. regularly upgrades and updates the Subscription Services. This means the Subscription Services are continually evolving. Some updates occur automatically, while others may require Subscriber to schedule and implement the changes. The changes may also mean that Subscriber needs to upgrade its equipment in order to make efficient use of the Subscription Services. TRADER’S EDGE INC. will provide Subscriber with advance notification in this case.
- TRADER’S EDGE INC. recognizes that Subscriber may have legitimate business reasons for not upgrading to a new version of the Subscription Services as soon as the version becomes available. However, TRADER’S EDGE INC. will not support old versions indefinitely. TRADER’S EDGE INC. has policy that sets out what happens when old versions reach end-of-life. When an old version used by Subscriber is at end-of-life, TRADER’S EDGE INC. may remove Subscriber’s access to that version and upgrade Subscriber to a new version. TRADER’S EDGE INC. solely owns the intellectual property in the Software (except for third party components) and the Documentation.
- Conditions of Use. The Subscription Services provided to Subscriber are non-exclusive, non-transferable (except as provided in Section 17.4), and are for Subscriber’s internal business use only. Subscriber’s right to use the Subscription Services is conditional upon the following.
Subscriber may not:
- transfer to any other person any of its rights to use the Subscription Services;
- sell, rent or lease the Subscription Services;
- make the Subscription Services available to anyone who is not an “Authorized User”. An Authorized User is an employee of Subscriber, or of a person to whom Subscriber has outsourced services, who is authorized to access the Software as either a named or concurrent user;
- create any derivative works based upon the Subscription Services or Documentation;
- copy any feature, design or graphic in, or reverse engineer the Software;
2. Not Applicable.
3. Subscriber Data.
3.1. Subscriber must provide all data for use in the Subscription Services, and TRADER’S EDGE INC.is not obliged to modify or add to the Subscriber Data. Subscriber is solely responsible for the content and accuracy of the Subscriber Data.
3.2. The Subscriber Data belongs to Subscriber, and TRADER’S EDGE INC. makes no claim to any right of ownership in it.
3.3. TRADER’S EDGE INC. must keep the Subscriber Data confidential in accordance with Section 13 of this Agreement.
3.4. TRADER’S EDGE INC. must use the Subscriber Data strictly as necessary to carry out its obligations under this Agreement, and for no other purpose. However, TRADER’S EDGE INC.:
3.4.1. may observe and report back to Subscriber on Subscriber’s usage of the Subscription Services, and make recommendations for improved usage of the Subscription Services;
3.4.2. may identify trends and publish reports on its findings provided the reports include data aggregated from more than one Subscriber site and do not identify Subscriber; and,
3.4.3. must ensure that the data center containing the Subscriber Data meets the following physical and electronic security requirements: (i) single point of entry; (ii) main access monitored with additional access for emergency purposes only; (iii) surveillance cameras in facility; (iv) access validation with identity check; (v) access only to persons on TRADER’S EDGE INC. approved access list; (vi) log-in validation; (vii) creation of accounts only as verified by TRADER’S EDGE INC. or sub-contracted hosting provider; (viii) access to servers via encrypted means; and, (ix) servers running behind secure firewall.
3.5. TRADER’S EDGE INC. N/A
3.6. TRADER’S EDGE INC. must take reasonable technical and organizational measures to keep personal data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, must deal with the information only in accordance with Subscriber’s instructions, provided they are reasonable and lawful.
3.7. TRADER’S EDGE INC. must back up Subscriber Data once in each 24-hour period. Documentation; and (ii) TRADER’S EDGE INC. owns or otherwise has the right to provide the Subscription Services to Subscriber under this Agreement. The remedies set out in this Section 4 are Subscriber’s exclusive remedies for breach of either warranty.
4. Subscription Services Warranties.
It is the Subscriber’s sole responsibility to determine that the Services meet the needs of their business and are suitable for the purposes for which they are used.
The Subscriber remains solely responsible for complying with all applicable accounting, tax and other laws. It is their responsibility to check that storage of and access to their Data via the Software and the Website will comply with laws applicable to them (including any laws requiring them to retain records).
TRADER’S EDGE INC. warrants that: (i) the Subscription Services will function substantially as described in the Documentation; and (ii) TRADER’S EDGE INC. owns or otherwise has the right to provide the Subscription Services to Subscriber under this Agreement. The remedies set out in this Section 4 are Subscriber’s exclusive remedies for breach of either warranty.
4.1. If the Subscription Services do not function substantially in accordance with the Documentation, TRADER’S EDGE INC. must, at its option, either (i) modify the Subscription Services to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet Subscriber’s requirements. If neither of these options is commercially feasible, either party may terminate the relevant Order Form under this Agreement, in which case TRADER’S EDGE INC. shall refund to Subscriber all fees pre-paid to TRADER’S EDGE INC. under the relevant Order Form for unused Subscription Services.
4.2. If the normal operation, possession or use of the Subscription Services by Subscriber is found to infringe any third party CANADA intellectual property right or TRADER’S EDGE INC. believes that this is likely, TRADER’S EDGE INC. must, at its option, either (i) obtain a license from such third party for the benefit of Subscriber; (ii) modify the Subscription Services so that they no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Order Form under this Agreement, in which case TRADER’S EDGE INC. shall refund to Subscriber all fees pre-paid to TRADER’S EDGE INC. under the relevant Order Form for unused Subscription Services.
4.3. However, TRADER’S EDGE INC. has no warranty obligations for: 4.3.1. the extent that Software has been modified by Subscriber or any third party, unless the modification has been approved in writing by TRADER’S EDGE INC.; 4.3.2. a version of the Subscription Services that has passed its end-of-life date (see Section 1.4); or, 4.3.3. problems in the Subscription Services caused by any third party software or hardware, by accidental damage or by other matters beyond TRADER’S EDGE INC.’s reasonable control.
PART TWO – PROFESSIONAL SERVICES
5. Professional Services Warranties.
TRADER’S EDGE INC. warrants that (i) the Work Product will substantially conform to the Statement of Work; and (ii) the Professional Services will be performed with reasonable skill, care and diligence. The remedies set out in this Section 5 are Subscriber’s exclusive remedies for breach of either warranty.
5.1. If the Professional Services do not conform to the Statement of Work or are not performed with reasonable skill, care and diligence, TRADER’S EDGE INC. shall re-perform the Professional Services to the extent necessary to correct the defective performance.
6. Subscriber’s Responsibilities
Subscriber must provide TRADER’S EDGE INC. with all information, access, and full good faith cooperation reasonably necessary to enable TRADER’S EDGE INC.to deliver the Professional Services, and must do anything that is identified in the Statement of Work as Subscriber’s responsibility. If Subscriber fails to do this, TRADER’S EDGE INC. will be relieved of its obligations to the extent that the obligations are dependent upon Subscriber’s performance.
7. Intellectual Property Ownership.
TRADER’S EDGE INC. solely owns the intellectual property in the Work Product. Upon payment in full of any amounts due for Professional Services, Subscriber shall have a non-exclusive, non-transferable (except as provided in Section 17.4) right to use the Work Product for Subscriber’s internal business purposes. This right shall continue for so long as, and be subject to the same terms and conditions as the right to use the Subscription Services.
PART THREE – GENERAL
8. Term of Agreement.
This Agreement start on the date that Subscriber signs an Order Form and ends when TRADER’S EDGE INC.no longer is obliged to provide Subscriber with Subscription Services or Professional Services under any Order Forms.
Subscriber must pay the fees listed in the relevant Order Form.
9.1. Subscriber must pay a finance charge on any overdue payment of one and one-half percent (1-1/2%) for each month or portion of a month that the payment is overdue, or the highest interest rate permitted by applicable law, whichever is the lower. Interest shall compound monthly. The fees do not include any taxes, and Subscriber shall pay any sales, use, value added or other taxes or import duties (other than corporate income taxes payable by TRADER’S EDGE INC.) due as a result of any amounts paid to TRADER’S EDGE INC. Subscriber shall bear all of TRADER’S EDGE INC. costs of collection of overdue fees, including reasonable attorneys’ fees.
9.2. If Subscriber initially purchases Subscription Services for a term, and subsequently orders additional product, the purchase price for the additional product shall be pro-rated.
10. Termination and Suspension.
10.1. Either party may terminate rights granted under a particular Order Form if the other breaches any material term of the Order Form (including a material term of this Agreement insofar as it applies to the Order Form) and the breach is not cured within 60 days of written notice.
10.2. Instead of terminating rights granted to a Subscriber under an Order Form, TRADER’S EDGE INC. may suspend the provision of Subscription Services to Subscriber for a period of up to 45 days. At any time during that period, TRADER’S EDGE INC. may terminate the rights granted to Subscriber.
10.3. Sections 2.4, 2.5, 3.3, 7, 9, 11, 12, 13, 14, 15 and 17 continue after this Agreement ends.
10.4. If TRADER’S EDGE INC. terminates an Order Form under this Agreement because of non-payment by Subscriber, all unpaid fees for the remainder of the Subscription Term immediately fall due for payment.
10.5. Upon termination of Subscriber’s Subscription Service, TRADER’S EDGE INC. must promptly provide Subscriber with all Subscriber Data in comma separated value (CSV) format. However, TRADER’S EDGE INC. may retain Subscriber Data in backup media for an additional period of up to 12 months, or longer if required by law.
11. Warranty Disclaimer.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICES, WORK PRODUCT AND PROFESSIONAL SERVICES ARE PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND TRADER’S EDGE INC.DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TRADER’S EDGE INC.DOES NOT WARRANT THAT THE USE OF THE SUBSCRIPTION SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
12. Limitation of Liability.
NEITHER PARTY SHALL BE LIABLE UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. SUBSCRIBER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SUBSCRIPTION SERVICES, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE SUBSCRIBER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICES OR WORK PRODUCT. EACH PARTY’S TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY SUBSCRIBER TO TRADER’S EDGE INC.UNDER SUCH RELEVANT ORDER FORM DURING THE 24 MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN TRADER’S EDGE INC.AND SUBSCRIBER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO BIZ-NAME-HERE. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF AN INFRINGEMENT OF BIZ-NAME-HERE’S INTELLECTUAL PROPERTY RIGHTS, OR A BREACH OF SECTION 13 OF THIS AGREEMENT, OR IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.
13.1. The Subscription Services, Software, Documentation and Work Product contain valuable trade secrets that are the sole property of TRADER’S EDGE INC., and Subscriber agrees to use reasonable care to prevent other parties from learning of these trade secrets. Subscriber must take reasonable care to prevent unauthorized access to or duplication of the Subscription Services, Software, Documentation, and Work Product.
13.2. The Subscriber Data may include valuable trade secrets that are the sole property of Subscriber. TRADER’S EDGE INC. must take reasonable care to prevent other parties from learning of these trade secrets.
13.3. Sections 13.1 and 13.2 do not apply to any information that (i) is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available; (ii) is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records; (iii) is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or (iv) is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.
14. Indemnification by TRADER’S EDGE INC.
TRADER’S EDGE INC. must indemnify and hold harmless Subscriber, its affiliates, directors and employees from any damages finally awarded against Subscriber (including, without limitation, reasonable costs and legal fees incurred by Subscriber) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Services, Documentation or Work Product by Subscriber infringes any copyright, trade secret or Canada patent, (“Legal Action”). TRADER’S EDGE INC. must also assume the defense of the Legal Action.
14.1. However, TRADER’S EDGE INC. shall have no indemnification obligations for any Legal Action arising out of: (i) a combination of the Subscription Services, Software or Work Product with software or products not supplied, or approved in writing by TRADER’S EDGE INC.; (ii) any repair, adjustment, modification or alteration to the Subscription Services by Subscriber or any third party, unless approved in writing by TRADER’S EDGE INC.; or (iii) any refusal by Subscriber to install and use a non-infringing version of the Subscription Services, or Work Product offered by TRADER’S EDGE INC. under Section 4.2(ii). Section 4.2(ii) and this Section 14 state the entire liability of TRADER’S EDGE INC. with respect to any intellectual property infringement by the Subscription Services, Software or Work Product.
14.2. Subscriber must give written notice to TRADER’S EDGE INC. of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and must give copies to TRADER’S EDGE INC. of all communications, notices and/or other actions relating to the Legal Action. Subscriber must give TRADER’S EDGE INC. the sole control of the defense of any Legal Action, must act in accordance with the reasonable instructions of TRADER’S EDGE INC. and must give TRADER’S EDGE INC. such assistance as TRADER’S EDGE INC. reasonably requests to defend or settle such claim. TRADER’S EDGE INC. must conduct its defense at all times in a manner that is not adverse to Subscriber’s interests. Subscriber may employ its own counsel to assist it with respect to any such claim. Subscriber must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with TRADER’S EDGE INC. or its counsel, or because TRADER’S EDGE INC. fails to assume control of the defense. Subscriber must not settle or compromise any Legal Action without TRADER’S EDGE INC. express written consent. TRADER’S EDGE INC. shall be relieved of its indemnification obligation under Section 14 if Subscriber materially fails to comply with Section 14.2.
15. Indemnification by Subscriber.
Subscriber must indemnify and hold harmless TRADER’S EDGE INC., its affiliates, directors, and employees from any damages finally awarded against TRADER’S EDGE INC.(including, without limitation, reasonable costs and legal fees incurred by Subscriber) arising out of any third party suit, claim or other legal action (including but not limited to any governmental investigations, complaints and actions) in connection with the Subscriber Data, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Subscriber Data (“Legal Claim”).
15.1. TRADER’S EDGE INC. must give written notice to Subscriber of any Legal Claim no later than 30 days after first receiving notice of a Legal Claim, and must give copies to Subscriber of all communications, notices and/or other actions relating to the Legal Claim. TRADER’S EDGE INC. must give Subscriber the sole control of the defense of any Legal Claim, must act in accordance with the reasonable instructions of Subscriber and must give Subscriber such assistance as Subscriber reasonably requests to defend or settle such claim. Subscriber must conduct its defense at all times in a manner which is not adverse to BIZ-NAME-HERE’s interests. TRADER’S EDGE INC. may employ its own counsel to assist it with respect to any such claim. TRADER’S EDGE INC. must bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Subscriber or its counsel, or because Subscriber fails to assume control of the defense. TRADER’S EDGE INC. must not settle or compromise any Legal Claim without Subscriber’s express written consent. Subscriber shall be relieved of its indemnification obligation under Section 15 if TRADER’S EDGE INC. materially fails to comply with Section 15.1.
16.1. TRADER’S EDGE INC. may not list Subscriber as a Subscriber and not use Subscriber’s logo on TRADER’S EDGE INC. website, on publicly available Subscriber lists, and in media releases, unless authorization and approval by Subscriber explicitly given in writing to TRADER’S EDGE INC.
17.1. This Agreement together with the Order Form represents the entire agreement of the parties, and supersedes any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an Order Form, the Order Form will prevail.
17.2. This Agreement may not be changed or any part waived except in writing by the parties.
17.3. This Agreement will be governed by the laws of Canada (excluding its choice of law rules). The parties consent to the exercise of exclusive jurisdiction by the state or federal courts in the Province of Ontario for any claim relating to this Agreement.
17.4. Subscriber must not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of TRADER’S EDGE INC. TRADER’S EDGE INC. may not withhold such consent in the case of an assignment by Subscriber of its rights and obligations to an entity that has acquired all, or substantially all of Subscriber’s assets, or to an assignment that is part of a genuine corporate restructure. Any assignment in breach of this Section is void.
17.5. Subscriber must not export or re-export, directly or indirectly, any Subscription Services, Documentation or confidential information to any countries outside the Canada except as permitted under Canada’s Export Administration Regulations.
PART FOUR – DEFINITIONS
18.1. “Subscriber Data” means any electronic information stored in the Software database.
18.2. “Documentation” means user documentation provided electronically by TRADER’S EDGE INC.for use with the Subscription Services, as periodically updated.
18.3. “Order Form” means a document provided by TRADER’S EDGE INC. and signed by Subscriber that describes TRADER’S EDGE INC. service offering.
18.4. “Professional Services” means the training; consulting, development and other professional services identified on a Statement of Work, but do not include the Subscription Services.
18.5. “Statement of Work” means a document provided by TRADER’S EDGE INC. and signed by Subscriber that describes the Professional Services to be provided by TRADER’S EDGE INC.to Subscriber.
18.6. “Software” means the software whose functionality is described in the Order Form.
18.7. “Subscription Services” means the hosted Subscriber experience solutions identified in an Order Form, and any modifications periodically made by TRADER’S EDGE INC., but does not include the Professional Services.
18.8. “Subscription Term” means the period of time during which TRADER’S EDGE INC.is required to provide Subscriber with the Subscription Services.
18.9. “Work Product” means object code, source code, flow charts, documentation, information, reports, test results, findings, ideas and any works and other materials developed by TRADER’S EDGE INC.in providing the Professional Services to Custom
PART FIVE – PRICING
Subscriber agrees to pay PRICE by either plan per month or per annum choosing at their option.
PART SIX – SIGNATURES
The subscriber agrees that by checking the box accepting this Terms of Agreement they are bound by the terms as set-forth in this agreement.