In consideration of the mutual covenants and agreements set out below, and other good and valuable consideration (the receipt and sufficiency of which are hereby acknowledged), FlowPoint and Client agree as follows:
1. Grant of Access. FlowPoint hereby grants Client a non-exclusive, no-cost, non-transferable right to access and use the FlowPoint services through their platform during the term of the agreement between FlowPoint and Customer and in the Customer location(s), solely for access and use by Client’s authorized users in accordance with the terms and conditions of this Agreement and limited to Client’s internal business purposes. FlowPoint shall provide to Client the necessary passwords and network links or connections to allow authorized users to access and use FlowPoint’s Services.
2. Documentation Licence. FlowPoint hereby grants to Client a non-exclusive, no-cost, non-sublicensable, non-transferable license to use the FlowPoint services related documentation during the term of the agreement between FlowPoint and Customer, solely for download and use by Client’s authorized users in accordance with the terms and conditions of this Agreement and limited to supporting Client’s internal use of the FlowPoint services.
3. Account Use. Client shall remain responsible and liable for any and all acts and omissions of each Client authorized user arising from the access and use of the FlowPoint services and documentation to the same extent as if such acts or omissions were by Client.
4. Passwords and Access Credentials. Client and each Client authorized user is responsible for keeping its passwords and access credentials associated with FlowPoint’s services confidential and shall not transfer them to any other person. Client will promptly notify FlowPoint of any unauthorized access to such passwords or access credentials.
5. When accessing and using FlowPoint’s services Client and its authorized users shall:
(a) not impersonate another person or misrepresent authorisation to act on behalf of others or FlowPoint;
(b) correctly identify the sender of all electronic transmissions;
(c) not attempt to undermine the security or integrity of the underlying systems;
(d) not use, or misuse, the FlowPoint services in any way which may impair the functionality of the underlying systems or impair the ability of any other user to access the SaaS Services;
(e) not attempt to view, access or copy any material or data other than that which the Client is authorised to access, and to the extent necessary for the Client and the authorized users to access FlowPoint’s services in accordance with this Agreement; and
(f) neither access FlowPoint’s services in a manner, nor transmit, input or store any data, that breaches any third party right (including intellectual property rights and privacy rights) or is defamatory, obscene, harassing, threatening, harmful, or unlawful in any way.
6. Protection of FlowPoint IP. FlowPoint’s intellectual property and services (“FlowPoint IP”) shall be carefully protected by Client as follows:
(a) Client shall treat and protect FlowPoint IP as FlowPoint confidential information;
(b) Client shall keep track and ensure control over the number of authorized users, and locations permitted to access FlowPoint’s services; and
(c) Client will only assign representatives who are under a duty to observe and comply with this Agreement in protecting the FlowPoint IP
7. Restrictions. FlowPoint acknowledges that Client shall own all right, title, and interest in and to the Client data. Client hereby grants to FlowPoint, (a) during the term of the Customer Agreement, a non-exclusive, irrevocable, royalty-free, worldwide license to reproduce, distribute, and otherwise use and display the Client data and perform all acts with respect to the Client data as may be necessary for FlowPoint to provide the FlowPoint services to Client, and (b) a non-exclusive, perpetual, irrevocable, royalty-free, worldwide license to reproduce, distribute, modify, and otherwise use and display Client data incorporated within FlowPoint’s anonymous aggregated statistics.
8. Privacy and Personal Information. Client represents, warrants, and covenants to FlowPoint that Client has and will continue to have throughout the Term, the necessary rights and consents in and to the Client data, including the Personal Information, to use and store such Client data through the FlowPoint Services, and that doing so will not infringe, misappropriate, or otherwise violate any IP Rights, of any Person or violate any applicable Law. Customer acknowledges and agrees that the FlowPoint Services are intended for use with certain categories of non-sensitive Personal Information only, such as e-mail addresses and first and last names. Customer hereby agrees not to either include or require the inclusion by its Clients of sensitive Personal Information in the Client data without FlowPoint’s express prior written consent, which consent may be withheld in FlowPoint’s sole discretion. In this section, “Personal Information” means personal information about an identifiable person or other information that is subject to any applicable Laws related to privacy, data protection, credit reporting, information security, confidentiality or data breach notification, including PIPEDA and its provincial equivalents.
9. Suspension. FlowPoint may temporarily suspend Client’s and/or any authorized user’s access to any or all the FlowPoint services if: (a) FlowPoint reasonably determines that (A) there is a threat or attack on any of FlowPoint IP, (B) Customer’s or any Authorized User’s use of FlowPoint IP disrupts or poses a security risk to FlowPoint IP or to any other customer or vendor of FlowPoint including the upload of a virus to the FlowPoint service, (C) Client, or any authorized user, is using FlowPoint IP for fraudulent or illegal activities, or (D) FlowPoint’s provision of the FlowPoint services to Client or any authorized user is prohibited by applicable law; or (b) any vendor of FlowPoint has suspended or terminated FlowPoint’s access to or use of any third-party services or products required to enable Client to access the FlowPoint (a suspension described in subclause (a) or (b), a “Service Suspension”). FlowPoint shall use commercially reasonable efforts to (A) provide written notice of any Service Suspension to Client, (B) provide updates about resumption of access to the FlowPoint services following any Service Suspension, and (C) resume providing access to the FlowPoint services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. FlowPoint shall have no liability for any damage, liabilities, Losses (including any loss of data or profits), or any other consequences that Client or any authorized user may incur as a result of a Service Suspension.
10. Termination. This Agreement may be terminated at any time by FlowPoint effective on written notice to Client if Client:
(a) fails to cure a Service Suspension within 15 days of FlowPoint’s delivery of written notice of such failure; or
(b) (i) is in material breach of a material provision of this Agreement and such breach if capable of being cured, is not cured within 30 days of written notice of such breach, (ii) is dissolved, liquidated, or wound-up or takes any corporate action for such purpose, (iii) becomes insolvent or is unable to pay its debts as they become due, (iv) becomes subject of a bankruptcy proceeding under any bankruptcy or insolvency Law, (vi) makes a general assignment for the benefit of its creditors, or (vii) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager, or custodian over all or a part of its property.
11. DISCLAIMER OF WARRANTIES. FLOWPOINT’S SERVICES, AND FLOWPOINT IP ARE PROVIDED “AS IS” AND TO THE MAXIMUM EXTENT PERMITTED BY LAW FLOWPOINT DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING ALL CONDITIONS AND WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, ARISING BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE, AS WELL FLOWPOINT DOES NOT WARRANT THAT THE SERVICES OR FLOWPOINT IP, OR ANY PRODUCTS OR RESULTS OF ANY OF THEIR USE, WILL: (a) MEET CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS, (bi) OPERATE WITHOUT INTERRUPTION, (c) ACHIEVE ANY INTENDED RESULT, (d) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR (e) BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
12. EXCLUSION OF DAMAGES. IN NO EVENT WILL FLOWPOINT OR ANY OF ITS SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND OTHERWISE, FOR ANY: (A) LOSS OF PRODUCTION, USE, BUSINESS, CONTRACTS, REVENUE, PROFIT, ANTICIPATED SAVINGS, OR ANY DIMINUTION IN VALUE, (B) BUSINESS INTERRUPTION OR IMPAIRMENT OR ANY USE OF OR INABILITY TO USE THE SERVICES OR FLOWPOINT IP, (C) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, (D) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE, OR EXEMPLARY DAMAGES, (E) LOSS OF GOODWILL OR REPUTATION, OR (F) COSTS OF REPLACING ANY GOODS OR SERVICES, IN EACH CASE, REGARDLESS OF WHETHER THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE DISCLOSED TO CLIENT OR ANY OTHER PERSON, OR FORESEEABLE AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
13. CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF FLOWPOINT AND ITS SERVICE PROVIDERS, AND SUPPLIERS TO CUSTOMER FOR DIRECT DAMAGES UNDER, OR IN CONNECTION WITH, THIS AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT, STRICT LIABILITY, AND OTHERWISE, EXCEED FIFTY DOLLARS ($50). THE FOREGOING LIMITATIONS APPLY NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
14. Governing Law; Submission to Jurisdiction. This Agreement shall be governed by and construed in accordance with the internal Laws of the Province of Ontario and the federal Laws of Canada applicable in Ontario, without giving effect to any choice or conflict of law provision or rule that would cause the application of laws of any jurisdiction other than those of the Province of Ontario. Any action arising out of or related to this Agreement or the FlowPoint services shall be instituted exclusively in the courts of Ontario in each case located in the city of Toronto, and each party irrevocably submits to the exclusive jurisdiction of such courts.