Allocadia Software Inc. (“Allocadia”) provides its software-as-a-service application for marketing budgeting, planning, and performance (“Subscription Services”) and fee-based implementation, training, or other consulting services (“Professional Services”) (collectively, “Services”) to you (“Customer”) (Allocadia and Customer may be referred to collectively as the “Parties” and individually as a “Party”) pursuant to these Allocadia Terms of Service (this “Agreement”). By entering into a Services order form (“Order”) with Allocadia, Customer unconditionally accepts and agrees to all of the terms of this Agreement. By entering into this Agreement on behalf of a company or other legal entity, Customer represents that it has the authority to bind such entity and its affiliates to the terms of this Agreement. If Customer does not have such authority, or Customer does not agree to all of the terms of this Agreement, Customer may not, without exception, use the Services. Subject to the terms of this Agreement, Allocadia shall use commercially reasonable efforts to provide Customer the Services in accordance with the terms and limitations of each Order and hereby grants Customer a non-exclusive right to access and use the Subscription Services during the Term (defined herein).
RESTRICTIONS AND RESPONSIBILITIES
Customer and its Users shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share, or otherwise commercially exploit the Services or make the Services available to any third party, other than to Users or as otherwise authorized under this Agreement; (ii) use the Services to send, store, publish, post, upload, or otherwise transmit any viruses, Trojan horses, worms, time bombs, corrupted files, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept, or expropriate any systems, data, personal information, or property of another; (iii) interfere with or disrupt the integrity or performance of the Services; (iv) attempt to gain unauthorized access to the Services or its related systems or networks; (v) use or knowingly permit others to use any security testing tools in order to probe, scan, or attempt to penetrate or ascertain the security of the Services; (vi) access the Services for the purpose of building a similar or competitive product; or (vii) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Services or any part thereof or otherwise attempt to discover any source code or modify the Services.
Allocadia shall make the Services available to Customer pursuant to this Agreement and the relevant Order(s) beginning on the start date specified in the Order(s) and continuing thereafter as set forth therein (the “Term”). Customer’s purchase of Services is not contingent on the delivery of any future functionality or features or dependent on any oral or written public comments made by Allocadia regarding future functionality or features. Customer’s use of the Services includes the right to access the functionality available for the specific type of Services purchased as specified in the Order(s). Unless otherwise determined by Allocadia at its sole discretion, subsequent enhancements to the Subscription Services made generally available to all subscribing customers will be made available to Customer at no additional charge. Notwithstanding the foregoing, new features, functionality, or enhancements to the Subscription Services may be marketed separately by Allocadia and may require the payment of additional fees. Allocadia will determine, in its sole discretion, whether access to such new features, functionality, or enhancements will require an additional fee. Unless otherwise set forth in an Order, this Agreement will apply to any updates, upgrades, and new modules or offerings subsequently provided by Allocadia to Customer as part of any purchased Subscription Services.
Customer shall not permit access to or use of the Services by anyone other than Customer’s individual employees, agents, and/or “Affiliates” (any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For purposes of this definition, “control” means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity) who are authorized by Customer to access and use the Services in accordance with this Agreement and applicable Order(s) (collectively, “Users”). Customer is responsible and liable for its Users’ compliance with the terms of this Agreement, for its Users’ use of the Services, and for ensuring that Users maintain the confidentiality of all access credentials.
Subject to this Agreement, including Allocadia’s confidentiality obligations, Customer hereby grants Allocadia a limited, non-exclusive, royalty-free, worldwide license to use the “Customer Data” (meaning all electronic data submitted by or for the Customer to the Subscription Services) and perform all acts with respect to the Customer Data as may be necessary for Allocadia to provide the Subscription Services to Customer. To the extent that receipt of the Customer Data requires Allocadia to access and upload Customer Data from a third-party service provider, Customer shall obtain and provide relevant account information and passwords, and Allocadia shall access and use the Customer Data solely for Customer’s benefit and as set forth in this Agreement. As between Allocadia and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Allocadia shall maintain commercially reasonable administrative, physical, and technical safeguards for the protection, confidentiality, and integrity of Customer Data.
Customer shall provide for its own access to the Internet, arrange for secure Internet access therefor, and pay any service fees and all related expenses associated with such access. CUSTOMER ACKNOWLEDGES IT IS SOLELY AND EXCLUSIVELY RESPONSIBLE FOR THE CONTROL, OPERATION, AND SECURITY OF ANY INTERNET TRANSACTIONS OR COMMUNICATIONS INITIATED USING THE SERVICES. CUSTOMER FUTHER ACKNOWLEDGES THAT ALLOCADIA HAS EXPLICITLY INFORMED CUSTOMER THAT THE INTERNET IS NOT A SECURE MEDIUM AND MAY BE INHERENTLY UNRELIABLE AND SUBJECT TO INTERRUPTION OR DISRUPTION AND INADVERTENT OR DELIBERATE SECURITY BREACHES.
Customer shall provide accurate, current, and complete information as necessary for Allocadia to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes.
CONFIDENTIALITY – PROPRIETARY RIGHTS
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical, or financial information relating to the Disclosing Party’s business and technology (hereinafter referred to as “Confidential Information” of the Disclosing Party). Confidential Information of Allocadia includes, without limitation, all software and other non-public information and documentation regarding features, functionality, and performance of the Services. The Receiving Party shall: (i) to take at least reasonable precautions to protect Confidential Information; and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information. The foregoing will not apply with respect to any information after five years following the disclosure thereof or any information that the Receiving Party can document: (i) is or becomes generally available to the public without the breach of any confidentiality obligations herein; or (ii) was in its possession or known by it prior to receipt from the Disclosing Party; or (iii) was rightfully disclosed to it without restriction by a third party; or (iv) was independently developed without use of any Confidential Information of the Disclosing Party or (v) is required to be disclosed by law or other proper legal authority.
The Parties acknowledge that irreparable harm may result to the Disclosing Party if Recipient or its Affiliates, officers, directors, or independent contractors breach their obligations under this Agreement and that such a breach may not be properly compensable by an award of money damages. Accordingly, the remedies for any such breach or a threatened breach include, in addition to other remedies and damages available in law or equity or under this Agreement, injunctive relief or other equitable relief enjoining such breach or threatened breach at the earliest possible date, and such remedies may be exercised without the necessity on the part of the Disclosing Party to: (i) prove that such damages would not be adequately compensated by monetary award; or (ii) post any bond or security.
Allocadia, its licensors, and its service providers own all right, title, and interest in and to the Subscription Services, including all related intellectual property rights. Allocadia reserves all rights not expressly granted to Customer under this Agreement. This Agreement and the Order(s) create no implied rights. Customer and Users shall not delete or in any manner alter the copyright, trademark, and other proprietary notices of Allocadia appearing on the Subscription Services or any portion thereof. Additionally, Allocadia will exclusively own all right, title, and interest in and to any suggestions, enhancement requests, recommendations, or other feedback provided by Customer and its Users relating to the Services.
As between Allocadia and Customer, Customer exclusively owns all right, title, and interest in and to all Customer Data. Customer Data is deemed Confidential Information under this Agreement.
Allocadia has the right to compile statistical information derived from Customer Data and use of the Subscription Services. Allocadia has the right to make such aggregate and anonymous information publicly available, provided that such information does not incorporate any identifiable Customer Data and/or identify Customer or its Confidential Information. Allocadia retains all intellectual property rights in such aggregate statistical information.
FEES – PAYMENTS TERMS – TAXES
Fees. Customer shall pay all fees specified in the Order(s). Except as otherwise specified in an Order: (i) fees are quoted and payable in United States Dollars; (ii) fees are based on Services purchased, regardless of whether Customer uses the Services; (iii) except as otherwise set forth in Section 7.1, payment obligations are non-cancelable and fees paid are non-refundable; and (iv) the Services purchased cannot be decreased during the Term. Customer shall pay all amounts under this Agreement without setoff or counterclaim, and without any deduction or withholding. In the event Customer exceeds the maximum number of Users as specified in the Order(s), then Allocadia will have the right to invoice Customer at Allocadia’s then current rates and Customer shall pay the additional fees associated with such overages.
If Allocadia does not receive fees by the due date, then at Allocadia’s discretion: (i) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid; and (ii) Allocadia may condition future Service purchases on payment terms shorter than those specified in previous Order(s). If any amounts owed by Customer for the Services are 30 or more days overdue, Allocadia may, without limiting Allocadia’s other rights and remedies, suspend Customer’s and its Users’ access to the Services until such amounts are paid in full.
Fees do not include sales, use, or other taxes and Customer shall pay all applicable foreign, federal, state, provincial, and local taxes pertaining to Customer’s access to, use, or receipt of the Services, including any withholding taxes imposed by a jurisdiction other than Canada and the United States. Customer is not obligated to pay any taxes from any jurisdiction related to Allocadia’s net income, capital, or assets.
If Customer issues a purchase order in respect of this Agreement, Customer acknowledges that any such purchase order(s) is solely for the convenience of Customer’s purchasing system and does not in any way modify or add to this Agreement or the rights or obligations of Allocadia or Customer.
This Agreement and any applicable Order(s) may be terminated by either Party for cause as follows: (i) upon thirty 30 days’ Notice if the other Party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such 30-day period; (ii) effective immediately and without the requirement of Notice if the other Party ceases to do business, or otherwise terminates its business operations, except as a result of a permitted assignment hereunder. Allocadia may temporarily cease performance of its obligations during any cure period.
In the event of termination or expiration of a Subscription Term, and subject to Customer paying all outstanding fees pertaining to any Order(s) hereunder, Allocadia shall make the data export feature within the Subscription Services available for 30 days thereafter for use by Customer for the purpose of retrieving Customer Data. After such 30-day period, Allocadia will have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, destroy all Customer Data in its systems or otherwise in Allocadia’s possession or under its administrative control. Upon any termination or expiration of this Agreement: (i) all licenses and rights granted hereunder will terminate and Allocadia will no longer provide access to the Subscription Services to Customer; and (ii) Customer shall cease and cause its Users to cease using the Subscription Services. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, all rights to payment of fees, confidentiality obligations, warranty disclaimers, limitation of liability, indemnity obligations, and choice of law/designation of forum.
WARRANTIES – DISCLAIMERS
Each party represents and warrants it has the legal authority to enter into this Agreement. Allocadia warrants, for the sole benefit of Customer, that: (i) the Subscription Services will materially conform to the relevant “Documentation” (online user instructions made available by Allocadia as part of the Subscription Services, as may be updated from time to time by Allocadia and made available at: http://support.allocadia.com); and (ii) any Professional Services will be performed within the scope of the Order(s) and in a competent and workmanlike manner in accordance with generally accepted industry standards. Each Party represents and warrants to the other that it has the authority to enter into this Agreement, that the entity or individual name which it has provided on its own behalf for this Agreement is a true and accurate representation of its legal identity, and that the execution and performance of this Agreement has been duly authorized by all requisite formalities.
EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, ALLOCADIA AND ITS LICENSORS MAKE NO ADDITIONAL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES. WITHOUT LIMITING THE FOREGOING, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ALLOCADIA AND ITS LICENSORS EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. ALLOCADIA AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT: (I) THE USE OF THE SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED, ERROR-FREE, OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM, OR DATA; (II) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (III) ANY STORED CUSTOMER DATA WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; OR (V) THE SUBSCRIPTION SERVICES OR THE SERVER(S) THAT MAKE THE SUBSCRIPTION SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SUBSCRIPTION SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. ALLOCADIA AND ITS LICENSORS ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
Allocadia, at its expense, shall hold harmless, indemnify, defend, and pay any settlement amounts and damages, costs, and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third-party claim, suit, or proceeding alleging that Customer’s use of the Services in accordance with this Agreement infringes a third party’s United States patent. The foregoing obligations will not apply if such claim arises out of: (i) Customer’s use of infringing Customer Data; (ii) improper use of the Services in combination with any software, hardware, network, or system not supplied by Allocadia where the alleged infringement relates to or arises out of such combination; (iii) any modification or alteration of the Services other than by Allocadia; (iv) Customer’s continued use of the Services after Allocadia notifies Customer to discontinue use; and (v) Customer’s violation of applicable law. If any claim which Allocadia is obligated to defend has occurred, or in Allocadia’s determination is likely to occur, Allocadia may, in its sole discretion and at its option and expense: (a) obtain for Customer the right to use the allegedly infringing item; (b) substitute a functionality equivalent, non-infringing replacement for such item; (c) modify such item to make it non-infringing and functionally equivalent; or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Services due to such claim and the remaining days in the then-current Subscription Term.
Customer, at its expense, shall hold harmless, indemnify, defend, and pay any settlement amounts and damages, costs, and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third-party claim, suit, or proceeding: (i) alleging that Customer Data infringes any intellectual property right; or (ii) arising from the occurrence of the conditions set forth in Section 7.1(i)-(v) above.
The Parties’ obligations under this Section 7 are contingent upon the indemnified Party: (i) giving prompt Notice to the indemnifying Party of any claim under this Section; (ii) giving the indemnifying Party sole control of the defense or settlement of the claim; and (iii) reasonably cooperating in the investigation and defense of such claim(s). The indemnifying Party shall not settle or consent to a judgment in any claim that adversely affects the rights or interests of the indemnified Party or imposes additional obligations on the indemnified Party, without the prior written consent of the indemnified Party. THE RIGHTS AND REMEDIES SET FORTH IN THIS SECTION 7 ARE THE SOLE OBLIGATIONS OF THE INDEMNIFYING PARTY AND THE EXCLUSIVE REMEDIES AVAILABLE TO THE INDEMNIFIED PARTY IN THE EVENT OF AN APPLICABLE THIRD PARTY CLAIM.
LIMITATION OF LIABILITY
EXCEPT FOR BREACH OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF THE LICENSES GRANTED HEREIN, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED IN AGGREGATE THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER IN THE 12 MONTHS PRECEDING THE INCIDENT.
EXCEPT FOR BREACH OF INTELLECTUAL PROPERTY RIGHTS, BREACH OF THE LICENSES GRANTED HEREIN, AND INDEMNIFICATION OBLIGATIONS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL, OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE, OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SUBSCRIPTION SERVICES AND/OR THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SUBSCRIPTION SERVICES, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SUBSCRIPTION SERVICES, ANY INTERRUPTION, INACCURACY, ERROR, OR OMISSION, REGARDLESS OF CAUSE, EVEN IF ALLOCADIA AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Each Party giving or making any notice, request, demand, or other communication pursuant to this Agreement shall give such Notice in writing (“Notice”) and use one of the following methods of delivery: (i) personal delivery; (ii) registered or certified mail (in each case, return receipt requested and postage prepaid); or (iii) nationally or internationally recognized overnight courier service (with all fees prepaid), and such Notices will be delivered to the respective address first given above or to such other address as either Party may from time to time specify in writing to the other Party. All Notices will be deemed to have been duly given: (i) when delivered in person; (ii) upon receipt after dispatch by registered or certified mail, postage prepaid; or (iii) on the next business day if transmitted by national or international overnight courier (with confirmation of delivery). Notwithstanding the foregoing, Allocadia may provide Customer notice via email communication, and such notice will fall within the Notice requirements herein, with respect to any past due fees owed by Customer pursuant to any Order(s).
Nothing in this Agreement is intended to create a joint venture, partnership, agency, or employment relationship between the Parties. Neither Party by virtue of this Agreement has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other Party. Furthermore, other than the express obligations contained in this Agreement, nothing in this Agreement obligates either Party to enter into any additional contractual relationship with the other Party.
Both Parties shall comply with all applicable laws and regulations in their conduct under this Agreement, including import and export restrictions.
Neither Party will be liable for any failure or delay in performance under this Agreement (other than for a delay in the payment of money due and payable hereunder) to the extent such failure or delay is caused by conditions beyond the reasonable control of and not the fault of the nonperforming Party, including Acts of God, earthquakes, floods, fire, hurricanes, unusually extreme or severe weather, wars, insurrections, terrorism, riots, labor stoppage, denial of service attacks, or criminal acts of third parties (collectively, a “Force Majeure Event”), provided that the nonperforming Party gives the other Party prompt Notice, with full details following the occurrence of the cause relied upon. Any dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any Force Majeure Event.
The laws of the Province of British Columbia and the applicable federal laws of Canada (without giving effect to any conflicts of law principles in either case) govern all matters arising out of or relating to this Agreement and all transactions it contemplates, including, without limitation, its interpretation, construction, performance, and enforcement. Any Party bringing a legal action or proceeding against any other Party arising out of or relating to this Agreement and all transactions it contemplates shall bring such legal action or proceeding in the courts of the Province of British Columbia. Each Party waives, to the fullest extent permitted by law: (i) any objection which it may now or later have to the laying of venue of any legal action or proceeding arising out of or relating to this Agreement and all transactions it contemplates brought in any court in the Province of British Columbia; and (ii) any claim that any action or proceeding brought in any such court has been brought in an inconvenient forum.
Neither Party may assign any of its rights nor delegate any of its obligations under this Agreement, except with the prior written consent of the other Party, provided, however, that either Party may, without the written consent of the other Party assign this Agreement and its rights and delegate its obligations in connection with the transfer or sale of all or substantially all of its business or in the event of its merger, consolidation, change in control, or similar transaction. Any purported assignment of this Agreement and rights herein or delegation of obligations in violation of this Section 9.6 will be null and void and of no effect. This Agreement binds and benefits the Parties and, as the case may be, the Parties’ respective heirs, executors, administrators, legal representatives, and permitted successors and assigns.
The rights and remedies set forth in this Agreement are not intended to be exhaustive and the exercise by either Party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently exist in law or in equity or by statute or otherwise.
The Parties shall not use the trademarks and services marks of the other Party without that Party’s prior written consent. Notwithstanding the foregoing, Allocadia has the right to name Customer as a user of the Subscription Services. The Allocadia name, the Allocadia logo, and the product names associated with the Services are trademarks of Allocadia or third parties, and no right or license is granted to use them. Customer shall not remove any Allocadia trademark or logo from the Subscription Services.
If it is held by a court or other lawful authority of competent jurisdiction that any term, provision, covenant, or condition of this Agreement is illegal, invalid, or unenforceable, in whole or in part, such provision will be ineffective to the extent of such illegality, invalidity, or unenforceability without invalidating the remainder of such provision or the remainder of this Agreement; such remaining provisions will continue in full force and effect, provided the effectiveness of the remaining portions of this Agreement will not defeat the overall intent of the Parties.
No provision, right, power, or privilege in this Agreement may be waived, except pursuant to a written waiver executed by the Party against whom the waiver is sought to be enforced. Failure of a Party to enforce its rights on one occasion will not result in a waiver of such rights on any other occasion.
The headings and subheadings in this Agreement are inserted for convenience of reference only and will not be used in interpreting or construing the provisions of this Agreement.
This Agreement constitutes the entire agreement between the Parties and supersedes all other previous correspondence, promises, representations, proposals, and agreements, written or oral, express or implied, between the Parties relating to the subject matter contained herein.