MASTER SUBSCRIPTION AGREEMENT
THIS MASTER SUBSCRIPTION AGREEMENT AND ITS TERMS AND CONDITIONS OF SERVICE (THE “TERMS”) CONSTITUTE A LEGALLY BINDING CONTRACT BETWEEN THE END USER CUSTOMER (“CUSTOMER”) AND TECHDINAMICS INTEGRATI0NS INC. OF 2425 MATHESON EAST, MISSISSIAUGA ON, L4W 5K4 (“TECHDINAMICS”). THESE TERMS GOVERN TECHDINAMIC’S PROVISION OF SERVICES AND CONTENT TO CUSTOMER AND CUSTOMER’S USE OF THOSE SERVICES AND CONTENT. TECHDINAMICS MAY MODIFY THESE TERMS IN ITS SOLE DISCRETION ON 60 DAYS ADVANCE NOTICE (BY WEBSITE POSTING OR OTHERWISE), AND CUSTOMER’S CONTINUED USE OF THE SERVICES AND CONTENT AFTER ANY SUCH MODIFICATIONS CONSTITUTES CUSTOMER’S ACCEPTANCE OF THEM.
1. Grant of License. TECHDINAMICS hereby grants to Customer a limited, non-exclusive, non-transferable, right and license to use the Services and the Content solely for Customer’s own internal business purposes, subject to all of these Terms and the provisions of the subscription form signed by Customer (the “Subscription Form”). All rights in and to the Services and Content that are not expressly granted to Customer in these Terms are hereby reserved by TECHDINAMICS and its licensors. The term “Services” means the TECHDINAMICS services that Customer has ordered from TECHDINAMICS or an authorized reseller in the Subscription Form (the “Services”). The term “Content” means any and all audio and/or visual information, documents, software, and other products that TECHDINAMICS makes available to Customer for use in the course of using the Services. TECHDINAMICS may in its sole discretion provide Customer access to additional Content that customizes the Services for Customer. Such customized Content and Services shall be owned exclusively by TECHDINAMICS and shall be governed by these Terms. Customer understands and agrees that TECHDINAMICS and any authorized reseller are separate, independent contractors.
2. No Sublicensing. Customer shall not (a) license, sublicense, sell, resell, rent, timeshare, transfer, assign, distribute, or otherwise commercially exploit or make available in any way to any third party any service or software or other materials or information included with the Services or the Content; (b) make derivative works of, or otherwise modify any Services or Content; (c) create Internet “links” to any Services or Content or “frame” or “mirror” any Services or Content on any server or wireless or Internet-based device; or (d) reverse engineer or access any Services or Content in order to (i) build a competitive product or service, (ii) build a product using ideas, features, functions, or graphics similar to any Services or Content, or (iii) copy any ideas, features, functions, or graphics of the Services or Content. Customer shall not use any Services or Content in any way that infringes upon the intellectual property rights of any person, including without limitation TECHDINAMICS.
3. Customer Use. Customer is responsible for all activities relating to Customer’s access and use of the Services and Content and for compliance with all Laws associated therewith, including without limitation those relating to data privacy, international communications, and transmission of technical or personal data. Customer agrees not to disclose or provide access to any Services or Content to any person or entity except on a need-to-know basis to employees and other persons or entities not direct competitors of TECHDINAMICS who have contracted to provide related services to Customer and who have agreed in writing to abide by these Terms and not to use any Services or Content to compete with TECHDINAMICS. Customer agrees to use its best efforts to ensure that all persons having access to any Services or Content protect them from unauthorized use and disclosure. Customer shall notify TECHDINAMICS immediately of any unauthorized access or use of any Services or Content.
4. Payment of Fees and Charges. Customer shall timely pay to TECHDINAMICS all subscription fees, charges, and other amounts required by these Terms and the Subscription Form. All subscription fees are due as described in the Subscription Form. All other fees and charges, such as late fees or charges for excess or additional usage beyond the usage specified in the Subscription Form, will be charged on or around the 1st of the subsequent month paid by credit card must be received by TECHDINAMICS within fifteen (15) days from the date of Company’s invoice to Customer. All amounts that Customer does not pay when due shall bear interest at the rate of 11⁄2 percent per month or the maximum legal rate, whichever is less. Customer will be responsible for all costs of collection. If Customer signed the Subscription Form with an authorized reseller, Customer shall pay all subscription fees and amounts required by the Subscription Form directly to the reseller. TECHDINAMICS shall have the right to suspend Customer’s access to the Services and Content for non-payment of fees or any other amounts due from Customer to TECHDINAMICS or the reseller, in addition to any other remedies TECHDINAMICS may have, including without limitation terminating the parties’ agreement. In addition to any other remedies, TECHDINAMICS shall have the right to charge Customer a reconnection fee if its access to the Services and Content are suspended for non-payment. All prices are exclusive of any and all taxes. Customer agrees to pay all applicable federal, state, local, and foreign sales, use, value-added, alternative, add-on minimum, transfer, property, franchise, license, excise, import, export, registration, and other taxes, duties, tariffs, and fees that are associated with Customer’s use of the Services and content but excluding any taxes on TECHDINAMICS net income or gross receipts. Once Customer begins using the Services, any and all fees and charges shall become non-refundable, except as provided in Section 9. All pricing information is the confidential information of TECHDINAMCS or the authorized reseller, and Customer shall not disclose it to any third party unless required by law, after giving notice to TECHDINAMICS or the authorized reseller.
5. Customer System. Customer is responsible for obtaining and maintaining, at its sole expense, all of the hardware, software, and Internet connectivity and bandwidth necessary and appropriate for Customer to access and use the Services and the Content. If Customer fails to do so, Customer’s access to or ability to use the Services and the Content may be negatively affected or non-existent.
6. Intellectual Property. Subject to the license granted in these Terms, TECHDINAMICS (and its licensors, where applicable) shall own all right, title, and interest, including any and all copyrights, trade secrets, patents, trademarks, and other intellectual property rights, in and to the Services and Content and any suggestions, ideas, enhancement requests, feedback, recommendations, and other information Customer provides about any Services or Content (“Feedback”). Execution of a Subscription Form is not a sale and does not convey to Customer any rights of ownership in or related to the Services, the Content, or any intellectual property rights owned by or
licensed to TECHDINAMICS. The TECHDINAMCS name and logo and the product names associated with the Services and Content are trademarks of TECHDINAMICS, and no right or license is granted to Customer to use or reproduce them.
7. Customer Data. TECHDIAMICS will not own any data, information, or material that Customer submits in the course of using the Services (“Customer Data”), except for any Feedback that Customer provides through any channel. Customer agrees not to provide any Feedback that is covered by any third-party intellectual property rights. Customer, not TECHDINAMICS, shall have the sole responsibility for all aspects of the Customer Data, including, without limitation, its accuracy, legality, ownership, transmission, and use. TECHDINAMICS shall have no obligation to retain any copy of Customer Data for longer than ninety (90) days after termination of this agreement.
8. System Maintenance; Downtime. The Services and Content will be inaccessible at certain times for scheduled system maintenance (“Maintenance Time”). While TECHDINAMICS seeks to schedule Maintenance Time during non-peak hours and to provide 24 hours advance notice to customers, those practices cannot be guaranteed. In addition, the Services and Content may be subject to limitations, interruptions, outages, and other problems inherent in the use of the Internet and electronic communications (“Outages”). TECHDINAMICS is not responsible for any such Outages or any damage(s) resulting from any such Outages or any Maintenance Time. If the Services and Content become inaccessible for reasons within TECHDINAMICS control, other than for Maintenance Time, and excluding any time associated with Outages, TECHDINAMICS will provide Customer, upon Customer’s written request, the following monthly service fee credit for any such downtime in excess of a total of 45 minutes during a calendar month (“Downtime”): TECHDINAMICS will provide Customer a credit of five percent (5%) of Customer’s monthly service fee for each 30 minutes of Downtime (i.e., downtime beyond a monthly total of 45 minutes) up to a maximum credit of twenty-five percent (25%) of Customer’s monthly service fee. THIS CREDIT SHALL BE CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR DOWNTIME. If TECHDINAMICS performance is otherwise delayed or made impossible or commercially impracticable due to causes such as fire, explosion, strike or other difference with workers, shortage of energy sources, facilities, material or labor, delay or lack of communication, breakdown or accident, compliance with or other action taken to carry out the intent or purpose of any law, regulation, or other requirement of any governmental authority, or any cause beyond TECHDINAMICS control, TECHDINAMCS shall have such additional time to perform its obligations as may be reasonably necessary under the circumstances. However, Customer’s obligation to pay for the Services and Content shall not be suspended.
9. Term and Termination. These Terms will take effect on the acceptance date and will remain effective until terminated as provided herein. The term of the agreement between TECHDINAMICS and Customer shall be for the period specified in the Subscription Form, whether signed with TECHDINAMICS or an authorized reseller. Customer may terminate its agreement with TECHDINAMICS upon 30 days advance written notice to TECHDINAMCS, except that Customer shall remain responsible for payment of all unpaid subscription fees and other charges specified in the Subscription Form, whether signed with TECHDINAMICS or an authorized reseller. TECHDINAMICS may terminate its agreement with Customer by written notice to Customer (a) if Customer breaches these Terms or any provision of the Subscription Form, or (b) for convenience, upon thirty (30) days advance written notice to Customer. Any and all claims and payment obligations that arose before termination shall survive such termination. The following Sections shall also survive termination: 4,6, 7, 9, and 12-17. Upon termination of the agreement between TECHDINAMICS and Customer, all payment obligations of Customer shall be accelerated and become immediately due and payable, and Customer shall promptly cease accessing and using the Services and Content. If TECHDINAMCS terminates this agreement solely for its convenience, Customer shall be entitled to a refund of all unused subscription fees, after deduction of any and all other fees and charges that are then due and owing from Customer.
10. Export Restrictions. No Services or Content may be accessed, used, exported, or redistributed in any form in or to any country prohibited by Canadian export laws, rules, and regulations (“Laws”) or to residents or nationals of any such countries. Customer agrees to comply with all applicable national and international Laws that apply to the Services and Content, including without limitation Canadian export Laws. By accessing the Services and Content, Customer (a) represents and warrants to TECHDINAMICS that Customer not restricted from receiving or using Canadian products and agrees to comply with all applicable U.S. export Laws and all host country import Laws; and (b) agrees that Customer will not export, redistribute, or re-export any Services or Content, or any process or service that is a direct product of any Services or Content, in violation of any applicable Laws of Canada or the country in which Customer accessed or used such Services or Content.
11. Canadian Government Restricted Rights. Any software associated with the Services and the Content is commercial computer software developed at private expense and is provided with Restricted Rights. Use, duplication, and disclosure by civilian agencies of the Canadian Government shall be governed accordingly. Use, duplication, and disclosure by agencies of the Canadian Department of Defense shall be governed accordingly. The Contractor/Licensor is TECHDINAMICS INTEGRATIONS INC, an Ontario Corporation, 2425 Matheson Blvd East, Mississauga Ontario, L4W 5K4.
12. Waiver. Any waiver by TECHDINAMICS of any breach of these Terms or the Subscription Form shall not be construed as a waiver of any other or future breach. No failure by TECHDINAMICS to insist upon the strict performance of any covenant, duty, agreement, or condition, or to exercise any right or remedy consequent upon a breach thereof, shall constitute a waiver of any such breach or of any other covenant, agreement, term, or condition.
13. Limited Warranty, Disclaimers, and Limitations of Liability. The Services and Content are made available subject to the Limited Warranty, disclaimers, and limitations of liability that are set forth below, which Limited Warranty, disclaimers, and limitations are hereby incorporated into these Terms by this reference.
14. Governing Law. These Terms and the Subscription Form shall be governed by and interpreted in accordance with the Laws of Ontario, excluding conflicts of law rules. You agree that the United Nations Convention on Contracts for the International Sale of Goods is hereby excluded in its entirety and does not apply to the Services or Content. In any legal proceeding instituted with respect to these Terms or the Subscription Form, the prevailing party shall be entitled to recover its costs, expenses, and reasonable attorneys’ fees, including but not limited to those incurred in any and all appeals, review proceedings, and collection proceedings. Any and all legal proceedings between the parties shall be brought and pursued exclusively in the federal or provincial courts sitting in Mississauga County, Province of Ontario, Canada. Customer hereby irrevocably submits to the personal jurisdiction of such court(s). THE PARTIES HEREBY AGREE THAT NEITHER WILL REQUEST A JURY TRIAL FOR ANY DISPUTE RELATING TO THEIR AGREEMENT, AND EACH PARTY EXPRESSLY WAIVES ANY AND ALL SUCH RIGHTS TO A JURY TRIAL THAT MAY EXIST UNDER PROVINCIAL, FEDERAL, CONSTITUTIONAL, OR OTHER LAW.
15. Rights and Remedies. No right or remedy herein conferred upon or reserved to TECHDINAMICS is exclusive of any other right or remedy, at law or in equity, but each such right or remedy shall be cumulative. Customer shall defend, indemnify, and save harmless TECHDINAMICS and all of its officers, directors, employees, agents, successors, and assigns from and against any and all third-party claims, demands, actions, suits, losses, liabilities, damages, and all related costs and expenses, including without limitation reasonable attorneys’ fees and expenses, arising from or otherwise relating to any breach by Customer of these Terms or the Subscription Form. TECHDINAMICS agrees, at Customer’s request and sole expense, to cooperate in the defense of any such indemnified claims.
16. Severability. If any provision of these Terms or the Subscription Form is determined by a court in accordance with Section 14 to be void, invalid, unenforceable, or illegal, that provision shall be construed, limited, modified, or, if necessary, severed, to the extent necessary to eliminate its violability, invalidity, unenforceability, or illegality, and all remaining provisions shall remain unaffected and continue in full force and effect.
17. Entire Agreement. These Terms, together with any Subscription Form signed by Customer and TECHDINAMICS, contain the entire understanding and agreement between Customer and TECHDINAMICS and supersede all prior communications, proposals, representations, and agreements, whether written or oral, express or implied, with respect to the Services and the Content and any other subject matter covered by these Terms. TECHDINAMICS objects to and rejects all additional or different terms proposed by Customer, whether contained in any purchase order or any other Customer document. TECHDINAMICS reserves the right to modify these Terms or its policies relating to the Services and Content at any time, effective upon posting of an updated version of these Terms. Continued use of any Services or Content after any such modifications shall constitute Customer’s consent to such modifications. These Terms otherwise may not be modified except by mutual written agreement of the Parties. Customer’s rights and obligations under these Terms and the Subscription form may not be assigned or otherwise transferred, by operation of law or otherwise, without the prior written consent of TECHDINAMICS. TECHDINAMICS may assign any of its rights and obligations. NO SALESPERSON, RESELLER, OR SIMILAR PERSON IS AUTHORIZED TO MODIFY THESE TERMS OR MAKE ANY REPRESENTATION, WARRANTY, OR PROMISE WITH RESPECT TO ANY SERVICES OR CONTENT THAT IS DIFFERENT THAN, OR IN ADDITION TO, THE REPRESENTATIONS, PROMISES, AND LIMITED WARRANTY THAT ARE EXPRESSLY SET FORTH IN THESE TERMS.
Subject to the Terms and Conditions of this agreement, TECHDINAMICS warrants to Customer that the Services identified in Customer’s Subscription Form will substantially conform to TECHDINAMICS online training information about them, which TECHDINAMICS may modify in its discretion. This limited warranty does not cover Internet or power outages, however, or any other events or conditions beyond TECHDINAMICS control. Customer must notify TECHDINAMICS in writing of any nonconformity with the foregoing warranty within thirty (30) days from the date Customer first receives access to the Services or any major revision of the Services. If Customer gives such notice to TECHDINAMICS,
TECHDINAMICS, at its sole discretion and expense, will either (1) use reasonable efforts to remedy the nonconformity or (2) refund (or request Customer’s authorized reseller to refund) the unused subscription fees for the affected Services. If TECHDINAMICS (or the authorized reseller) provides such a refund, all of TECHDINAMICS and the reseller’s obligations with respect to the affected Services shall promptly terminate, and Customer shall have no further right to access or use them. THIS REMEDY SETS FORTH CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM FOR BREACH OF THIS LIMITED WARRANTY. This Limited Warranty is also subject to the Disclaimers and Limitations of Liability set forth below.
AND LIMITATIONS OF
EXCEPT AS EXPRESSLY PROVIDED IN THE LIMITED WARRANTY STATED
ABOVE, TECHDINAMICS MAKES NO REPRESENTATION OR WARRANTY AS TO THE RELIABILITY, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY, OR COMPLETENESS OF ANY SERVICE OR CONTENT. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING DISCLAIMER, TECHDINAMICS DOES NOT REPRESENT OR WARRANT THAT (1) USE OF ANY SERVICES OR CONTENT WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA, (2) THE SERVICES OR CONTENT WILL MEET ANY REQUIREMENTS OR EXPECTATIONS, (3) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (4) ANY ERRORS OR DEFECTS IN THE SERVICES OR CONTENT WILL BE CORRECTED, OR (5) THE SERVICES OR THE CONTENT ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. EXCEPT AS PROVIDED IN THE LIMITED WARRANTY SET FORTH ABOVE, ALL SERVICES AND CONTENT ARE PROVIDED TO CUSTOMER STRICTLY ON AN “AS IS” BASIS. TECHDINAMICS HEREBY EXPRESSLY DISCLAIMS ANY AND ALL OTHER CONDITIONS, REPRESENTATIONS, AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, USE, QUIET ENJOYMENT, OR NON- INFRINGEMENT OF THIRD PARTY RIGHTS.
TECHDINAMICS AGGREGATE LIABILITY ARISING OUT OF AND RELATING TO THESE TERMS, THE SUBSCRIPTION FORM, AND THE SERVICES AND CONTENT, REGARDLESS OF THE FORM OF ACTION OR THE NUMBER OR NATURE OF THE CLAIMS OR CAUSES OF ACTION (WHETHER BASED ON BREACH OF CONTRACT, WARRANTY, TORT, OR ANY OTHER THEORY OF LIABILITY), SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO TECHDINAMICS, OR RECEIVED BY TECHDINAMICS FROM AN AUTHORIZED RESELLER, FOR THE SERVICES AND CONTENT PROVIDED TO CUSTOMER THAT ARE THE SUBJECT OF THE CLAIMS OR CAUSES OF ACTION. IN NO EVENT SHALL TECHDINAMICS BE LIABLE FOR ANY LOSS, THEFT, OR CORRUPTION OF DATA, COST OF COVER, LOST PROFITS, LOSS OF USE, OR FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO ANY SERVICES OR CONTENT, WHETHER OR NOT TECHDINAMICS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN ARE A MATERIAL PART OF THE CONSIDERATION EXCHANGED BY THE PARTIES AND ARE REFLECTED IN THE PRICING OF THE SERVICES, WHICH DEFINES A MUTUALLY AGREED-UPON ALLOCATION OF RISKS AND BENEFITS. ALL OF THE FOREGOING DISCLAIMERS AND LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.