ATHENNIAN SERVICE TERMS
Last Updated: July 24, 2019.
Previous versions of these Service Terms are available here.
APPLICATION OF THESE SERVICE TERMS
When Customer enters into an Order Form, the Service Terms in effect on the effective date of the Order Form apply to (a)that Order Form, (b) the Services referred to in that Order Form for the duration of their initial subscription term, and (c) any Professional Services Provided in relation to those Services. If Customer enters into a new or additional Order Form, the Service Terms in effect on the effective date of the new or additional Order Form will apply to that new or additional Order Form. If Customer renews a subscription for a Service, the Service Terms in effect on the first day of the renewal subscription term will apply to that renewed Service.
When Athennian introduces new or additional features, functionality or Services, Athennian may provide terms or make updates to these Service Terms that apply to Customer’s use of those new or additional features, functionality or Services.
Customer and Athennian agree as follows:
“Active Entity Record” or “AER”means, at any time, an entity record within the Services with the status of“confirmed” or “pending”.
“Affiliate” means 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 entity or subject entity.
“Agreement” means the (a) the Order Form that incorporates these Service Terms by reference, (b) these Service Terms,and (c) all Statements of Work, as it or they may from time to time be amended or supplemented.
“Applicable Laws” means, in respect of any person, property, transaction or event, all applicable Canadian or foreign federal, provincial, state, municipal or local government laws, statutes,rules, by-laws and regulations, and all applicable official rules, policies,notices, directives, orders, judgments and decrees of any Governmental Authority, all as amended from time to time.
“Athennian” means Paper Interactive, Inc.,dba Athennian, an Alberta corporation.
“Customer” means the customer identified in the Order Form that refers to these Service Terms.
“Customer Content” means text, audio,video, images, and other information submitted by or for Customer to the Services, and used for the purpose of personalizing the presentation of screens, messaging or other communications from Customer to Users. For example, Customer Content may include Customer trademarks and branding on User facing screens.
“Customer Data” means data submitted by or for Customer to the Services or provided by Athennian to Customer in output files generated by the Services, including Support Data but excluding Customer Content, Third Party Content, Non-Athennian Applications, and Service Attributes.
“Customer Regulator” means any Governmental Authority that has regulatory authority over Customer, and includes privacy regulators.
“Customer Regulatory Requirements” has the meaning specified in the section titled “Customer Compliance with Applicable Laws and Customer Regulatory Requirements”.
“Data Center Service Provider” means Amazon Web Services, unless otherwise specified in the Order Form. Athennian may change the Data Center Service Provider by not less than 60 days prior notice to Customer.
“Data Processing Addendum” means, at anytime, the then current version of the Data Processing Addendum provided in the Legal Terms Portal for use with these Service Terms, as amended by Athennian from time to time, in its sole discretion.
“Documentation” means, for each of the Services, the User Guide and other Athennian documentation and policies applicable to the Service, as amended by Athennian from time to time.
“E-File” means the functionality within the Services that provides the ability for Customer to electronically file documents in certain jurisdictions.
“Force Majeure Event” means any event or circumstances beyond the reasonable control of a party, including an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror,strike or other labor problem, Internet or telecommunications service failure or delay, Non-Athennian Application failure or delay, or a denial of service attack.
“Governmental Authority” means any governmental or regulatory authority, agency, commission or board of any Canadian or foreign federal, provincial, state, municipal or local government,parliament or legislature, or any court or, without limitation, any other law, regulation or rule-making entity having or purporting to have jurisdiction in the relevant circumstances, and whether now or in the future constituted or existing, or any person acting or purporting to act under the authority of any of them.
“Legal Terms Portal” means the portal established by Athennian for contract information.
“Malicious Code” means code, files,scripts, agents or programs intended to do harm.
“Non-Athennian Application” means a service or software application that is provided a third party or by Customer and that interoperates with the Services, including Microsoft Office 365.
“Order Form” means an ordering document or online order specifying the Services to be provided under the Agreement that is entered into between Customer and Athennian, including any schedules, exhibits and addenda, as it may from time to time be amended or supplemented.
“Personal Data” means any information relating to an identified or identifiable natural person; an identifiable natural person is one who can be identified, directly or indirectly, in particular by reference to an identifier such as a name, an identification number, location data, an online identifier or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of that natural person.
“Professional Services” means professional services provided by Athennian to Customer under a Statement of Work, including requirements analysis, implementation, development and training services. Professional Services do not include Support Services.
“Professional Services Rates” means (a)the hourly or daily rates for Professional Services specified in the then current professional services rate card agreed to between the parties, or (b)if there is no professional services rate card agreed to between the parties at that time, the hourly or daily rates then charged by Athennian for Professional Services.
“Service Attributes” means (a) data related to the provision or use of the Services, such as resource identifiers, metadata tags, security and access roles, logs, rules, audit trail events, usage policies, permissions, usage metrics, statistics and analytics; and (b) datarequired for billing or administration of the Services, including billing and support contact information.
“Service Level Agreement” means, at anytime, the then current version of the Service Level Agreement provided in the Legal Terms Portal for use with these Service Terms, as amended by Athennian from time to time, in its sole discretion.
“Services” means the products and services that are ordered by Customer under the Order Form and made available online byAthennian, as described in the User Guide. Services do not include Non-Athennian Applications, Professional Services or Support Services.
“Statement of Work” means a statement of work specifying the Professional Services to be provided under the Agreement that is entered into between Customer and Athennian, including any schedules,exhibits and addenda, as it or they may from time to time be amended or supplemented.
“Support Data” means all data that is provided to Athennian by or on behalf of Customer (or that Customer authorizes Athennian to obtain from the Services) in relation to a request by Customer for Support Services.
“Support Services” means the support services described in the Support Services Terms.
“Support Services Terms” means, at anytime, the then current version of the Support Services Terms provided in the Legal Terms Portal for use with these Service Terms, as amended by Athennian from time to time, in its sole discretion.
“Third-Party Content” means information obtained by Athennian from publicly available sources or its third-party content providers and made available to Customer through the Services (for example,registry forms). Certain of the Services may include Third-Party Content.
“User” means an individual who isauthorized by Customer to use the Services, and to whom Customer (or, when applicable, Athennian at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include,for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.
“User Guide” means the user guide for theServices, as amended from time to time.
2. PROVISION OF SERVICES BY ATHENNIAN
Athennian will (a) make the Services available to Customer pursuant to these Service Terms and the Order Form, (b) provide Support Services to Customer at no additional charge, as described in the Support Services Terms in effect from time to time, and (c) use commercially reasonable efforts to make the online Services available 24 hours a day, 7 days a week, except for (i) planned downtime (of which Athennian will give advance electronic notice as provided in the Documentation), and (ii) any unavailability caused by circumstances beyond Athennian’s reasonable control,including a Force Majeure Event, in each case subject to Customer’s use of the Services in accordance with the Agreement and the Documentation.
2.2 Service Level Agreement.
Athennian will use commercially reasonable efforts to cause the Services to achieve the service levels specified in the Service Level Agreement in effect from time to time, but Athennian does not guarantee that those service levels can or will always be achieved.
2.3 Professional Services.
Athennian will provide Professional Services in accordance with any Statement of Work signed by both parties.
3. USE OF SERVICES BY CUSTOMER
Unless otherwise provided in the Order Form, (a)Services are purchased as subscriptions, and (b) any added subscriptions willterminate on the same date as the underlying subscriptions.
3.2 Service Limits.
Customer’s use of the Services may be subject to service limits specified in the Order Form. Customer will not exceed any such service limits.
3.3 Customer Responsibilities.
Customer will (a) be responsible for Users’ compliance with the Agreement and the Documentation, (b) use commercially reasonable efforts to prevent unauthorized access to or use of the Services and Documentation, and notify Athennian promptly of any such unauthorized access or use, (c) use Services and Documentation only in accordance with the Agreement,the Documentation, and Applicable Laws, and (d) comply with terms of service of any Non-Athennian Applications with which Customer uses Services.
3.4 Customer Restrictions.
Customer will not (a) make any Service or Documentation available to, or use any Service, Third-Party Content or Documentation for the benefit of, anyone other than Customer or Users, unless expressly stated otherwise in the Order Form or the Documentation, (b) sell,resell, license, sublicense, distribute, make available, rent or lease anyService or Documentation, or include any Service or Documentation in a service bureau or outsourcing offering, (c) use the Services or Non-Athennian Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, including intellectual property rights and privacy rights, (d) use the Services or Non-Athennian Application to store or transmit Malicious Code, orto send spam, (e) interfere with or disrupt the integrity or performance of anyService, Non-Athennian Application, or third-party data, (f) attempt to gain unauthorized access to any Service or Documentation or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Documentation in a way that circumvents a contractual service limit, or use any Service to access or use any Athennian intellectual property except as permitted under the Agreement or the Documentation, (h) copy the Services orany part, feature, function or user interface of the Services, (i) copy,distribute or use Third Party Content except as permitted in the Agreement or the Documentation, (j) copy Documentation except for internal use by Customer,(k) frame or mirror any part of any Service or Documentation, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (l) access or use any Service or Documentation in order to build a competitive product or service or to benchmark with a non-Athennian product or service, or (m) reverse engineer anyService or any software used to provide the Services (to the extent such restriction is permitted by Applicable Laws). Customer’s or a User’s intentional violation of these restrictions, or any use of the Services in breach of the Agreement or Documentation, by Customer or Users that inAthennian’s judgment imminently threatens the security, integrity or availability of Athennian’s services, may result in Athennian’s immediate suspension of the Services. Athennian will use commercially reasonable efforts under the circumstances to provide Customer with an opportunity to remedy such violation or threat prior to any such suspension. Unless otherwise specified in the Order Form, a User’s password may not be shared with any other individual and a User’s identification may only be reassigned to a new individual replacing one who will no longer use the Services.
3.5 Removal of Non-Athennian Applications.
If Athennian receives information that a Non-Athennian Application used with the Services by Customer may violate Applicable Laws or third-party rights, Athennian may so notify Customer and in such event Customer will promptly disable such Non-Athennian Application or modify the Non-Athennian Application to resolve the potential violation. If Customer does not take required action in accordance with the above,Athennian may disable the applicable Service and/or Non-Athennian Application until the potential violation is resolved. If requested by Athennian,Customer will confirm such deletion and discontinuance of use in writing and Athennian will be authorized to provide a copy of such confirmation to any third-party claimant or Governmental Authority, as applicable.
3.6 Non-Athennian Providers.
Athennian or third parties may make available third-party products or services, including Non-Athennian Applications and implementation and other consulting services.
(a) Any acquisition by Customer of such products or services, and any exchange of data between Customer and any non-Athennian provider, product or service is solely between Customer and the applicable non-Athennian provider. Athennian does not warrant or support Non-Athennian Applications or other non-Athennian products or services, whether or not they are designated by Athennian as “certified” or otherwise, unless otherwise expressly provided in the Order Form.
(b) If Customer chooses to use a Non-Athennian Application with the Services, Customer grants Athennian permission to allow the Non-Athennian Application and its provider to access Customer Data as required for the interoperation of that Non-Athennian Application with the Service. Athennian is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Athennian Application or its provider.
(c) The Services may contain features designed to interoperate with Non-Athennian Applications. To use such features, Customer may be required to obtain access to such Non-Athennian Applications from their providers, and may be required to grantAthennian access to Customer’s accounts on such Non-Athennian Applications. Athennian cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation,the provider of a Non-Athennian Application ceases to make the Non-Athennian Application available for interoperation with the corresponding Service features in a manner acceptable to Athennian.
4. FEES AND PAYMENT
Customer will pay all fees specified in the Order Form, Statements of Work or these Service Terms. Except as otherwise specified in the Order Form or a Statement of Work, (a) fees are based on Service subscriptions purchased and not actual use, (b) payment obligations are non-cancelable and fees paid are non-refundable, and (c)quantities purchased cannot be decreased during the relevant subscription term. Customer will also pay reasonable travel, accommodation and meal expenses for pre-approved travel.
4.2 E-File Fees.
Customer will pay additional fees for any use ofE-File. E-File fees include fees charged by Athennian (“Athennian E-File Fees”), fees charged by government registries (“Registry Fees”),and fees charged by third-party intermediaries (“Third-Party E-File Fees”).
(a) Customer will maintain a deposit account with Athennian (the “E-File Deposit Account”) with a minimum balance determined by Athennian from time to time (the “E-File Deposit Account Minimum Balance”). E-File fees will be paid from the E-File Deposit Account from time to time as Customer uses E-File. The initial E-File Deposit Account Minimum Balance is specified in the Order Form. Customer will pay the initial E-File Deposit Account Minimum Balance to Athennian before using E-File. Athennian may change the amount of the E-File Deposit Account Minimum Balance from time to time by notice to Customer, based on Customer’s use of E-File. Customer will maintain a balance in the E-File Deposit Account that is not less than the required E-File Deposit Account Minimum Balance. Customer will not be able to use E-File if there are insufficient funds in the E-File Deposit Account to pay for the applicable E-File fees.
(b) Athennian will provide Customer with an invoice monthly. Invoices will include a breakdown of Athennian E-File Fees, Registry Fees and Third Party E-File Fees, the application of funds from the E-File Deposit Account, the balance owing (if any), and the amount (if any) required to refresh the E-File Deposit Account to the E-File Deposit Account Minimum Balance.
(c) The current fees for the use of E-File are available on the Legal Terms Portal. Athennian may change Athennian E-File Fees on 60 days’ prior notice to Customer, such notice to be posted on the Legal Terms Portal. Registry Fees and Third Party E-File Fees are flow-through charges, without additional mark-up, and are subject to change from time to time.
4.3 Invoicing and Payment.
Unless otherwise stated in the Order Form or Statement of Work, (a) fees will be invoiced in advance and expenses in arrears, (b) fees and expenses are due net 30 days from the invoice date, and(c) fees and expenses are payable by electronic funds transfer. Customer is responsible for providing complete and accurate billing and contact information to Athennian and notifying Athennian of any changes to such information. If the Order Form or Statement of Work states that fees are payable by credit card, then (d) Customer will provide all required credit card information to Athennian, (e) if any of the information changes, Customer will immediately provide updated information to Athennian, (f) Customer authorizes Athennian to provide the information to Athennian’s third-party payment processing vendor, which may store the information in order to facilitate payments, (g) Customer authorizes Athenian and its third-party payment processing vendor to charge the credit card for all amounts payable under the Agreement,and (h) Customer will complete and sign any additional online or paper authorizations requested by Athennian for this purpose. Customer is solely responsible for all fees charged to Customer by its credit card issuer,bank, or other financial institution. If Customer does not notify Athennian in writing of an issue Customer may have with an invoice within 60 days of the invoice date, then Customer is deemed to have accepted the invoice and Customer waives any right to dispute the amount of the invoice.
4.4 Overdue Charges.
If any invoiced amount is not received by Athennian by the due date, then, without limiting Athennian’s rights or remedies, the invoiced amounts will accrue late interest at the rate of 1.5% of the outstanding balance per month (equivalent to 19.56% per annum), or the maximum rate permitted by law, whichever is lower.
Athennian's fees and expenses do not include any taxes, levies, duties or similar governmental assessments of any nature,including value-added, HST, GST, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases under the Agreement. If Athennian has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Athennian will invoice Customer and Customer will pay that amount unless Customer provides Athennian with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, Athennian is solely responsible for taxes assessable against it based on its income, property and employees. All payments by Customer under the Agreement will be without deduction or withholding for Taxes unless Customer is compelled by Applicable Laws to deductor withhold Taxes, in which event Customer will pay to Athennian such additional amounts necessary to enable Athennian to receive, after all deductions and withholdings for such Taxes, a net amount equal to the full amount which would otherwise have been payable under the Agreement if no such deduction or withholding was required.
5. ADDITIONAL TERMS
5.1 Athennian Security.
Athennian will implement and maintain appropriate technical and organizational measures, as determined by Athennian, designed to protect the security of Customer Data, including measures designed to protect Customer Data from unauthorized access, use, modification, deletion, loss or disclosure.
5.2 Security Incidents.
(a) Athennian will report to Customer any material security breach or other event where there is an actual material loss, theft, unauthorized access,acquisition, use, disclosure, alteration, or destruction of or to Customer Data within the possession or control of Athennian, or a significant risk of any of them (a “Security Incident”) promptly following determination by Athennian that a Security Incident has occurred, and in any event within 24 hours following such determination. The initial report will be made to the security contacts designated by Customer from time to time. Customer acknowledges that the Services are provided from the data centers of the DataCenter Service Provider, and that Athennian relies and depends on the Data Center Service Provider providing notice to Athennian of Security Incidents relating to those data centers.
(b) Athennian will investigate the Security Incident. Athennian will provide Customer with detailed information about the Security Incident to the extent reasonably possible and to the extent known. Athennian will take reasonable steps within its systems to mitigate the effects of the Security Incident. Athennian will use commercially reasonable efforts to provide to Customer the information required by Customer to fulfil any obligations under Applicable Laws to notify Customer Regulators and data subjects of the Security Incident.
5.3 Customer Data and Personal Data.
(a) Athennian will only use Customer Data and Service Attributes to provide the Services to Customer, except with the prior written consent of Customer or as otherwise expressly permitted under the Agreement. Customer has sole responsibility for the legality, reliability, integrity, accuracy and quality of Customer Data and of the means by which Customer acquires CustomerData. Customer represents and warrants to Athenian that Customer has all rights, consents, permissions and legal authority as may be necessary to provide the Customer Data to Athennian and to authorize Athennian to process the Customer Data to provide the Services.
(b) Athennian will not disclose Customer Data or Service Attributes outside of Athennian or its Affiliates except (i) as Customer directs or as required to provide the Services, (ii) to Non-Athennian Applications and their providers as described in the section titled “Non-Athennian Providers”, (iii)to Athennian subcontractors and service providers to the extent reasonably necessary for the provision of the Services, including to third party intermediaries who assist in the provision of E-File Services, (iv) as otherwise described in the Agreement or the Documentation, or (v) as required by Applicable Laws.
(c) Athennian will not disclose Customer Data or Service Attributes to law enforcement unless required by Applicable Laws. If law enforcement contacts Athennian with a demand for Customer Data or Service Attributes,Athennian will attempt to redirect the law enforcement agency to request that data directly from Customer. If compelled to disclose Customer Data or Service Attributes to law enforcement, Athennian will promptly notify Customer and provide a copy of the demand unless legally prohibited from doing so. Upon receipt of any other third-party request for Customer Data or Service Attributes, Athennian will promptly notify Customer unless prohibited by law. Athennian will reject the request unless required by law to comply. If the request is valid, Athennian will attempt to redirect the third party to request the Customer Data or Service Attributes directly from Customer.
(e) Customer Data will be stored in Canada, unless otherwise specified in the Order Form (the “Region”). Customer consents to the storage of Customer Data in, and the transfer of Customer Data into and out of, the Region, including the transfer of Customer Data across international borders. Athennian will not move Customer Data from the Region, except(i) as provided below, (ii) with the consent of Customer, or (iii) as necessary to comply with Applicable Laws or a binding order of a Governmental Authority(such as a subpoena or court order). To provide Support Services,Athennian may store and process Support Data and Service Attributes in the locations from which Athennian provides those Support Services. To investigate fraud, abuse or violations of the Agreement, Athennian may process Customer Data and Service Attributes where Athennian maintains its support and investigation personnel. To provide billing and administration services,Athennian may store and process Services Attributes in the locations from which Athennian provides those billing and administration services. Athennian does not control or limit the locations from which Customer or Customer’s Users may access Customer Data or to which they may move Customer Data (except as otherwise provided under “Export Compliance”). Customer may interconnect the Services with certain other services provided by third parties. Athennian does not control or limit the regions from such third parties may access Customer Data or to which they may move Customer Data (except as otherwise provided under “Export Compliance”).
(f) Athennian will use Support Data only to provide Customer with Support Services. Athennian will delete all copies of Support Data after the completion of the applicable Support Services, or earlier on Customer’s request.
(g) Upon request by Customer made within 90 days after the effective date of termination or expiration of the Agreement, Athennian will make any Customer Data in Athennian’s possession or control available to Customer for export or download in JSON/BSON or similar open source format as reasonably agreed between the parties. After such 90-day period, Athennian will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. On the request of Customer, an officer of Athennian will certify that Athennian has complied with these obligations.
(h) If any data submitted by or for Customer to the Services includes Personal Data, and if some or all of that Personal Data is subject to the GDPR,then the Data Processing Addendum in effect from time to time governs the processing of the Personal Data that is subject to the GDPR.
5.4 Athennian Compliance with Applicable Laws.
Athennian will comply with all Applicable Laws which are applicable to Athennian or generally applicable to information technology service providers.
5.5 Customer Compliance with Applicable Laws and RegulatoryRequirements.
Customer will comply with all Applicable Laws which are applicable to Customer, its businesses, or its use of the Services,including all Applicable Laws relating to the issuance and transfer of securities or relating to the use of electronic signatures (collectively, the “Customer Regulatory Requirements”). Customer acknowledges that Athennian is not providing any legal advice on Customer Regulatory Requirements. Without limiting the generality of the above, Customer acknowledges that the Services include functionality relating to the issuance and transfer of securities and that Customer’s use of the Services may be subject to Applicable Laws relating to the issuance and transfer of securities. Without limiting the generality of the above, Customer acknowledges that the Services include functionality relating to the use of electronic signatures and that Customer’s use of the electronic signature functionality may be subject to restrictions or limitations under Applicable Laws (for example, electronic signatures may not be permitted for certain types of documents, such as willsor land transfers, or may be subject to additional restrictions or requirements). For the avoidance of doubt, Athennian is not responsible for, and Customer is solely responsible for, compliance with Customer Regulatory Requirements and making an independent determination as to whether the Services satisfy Customer Regulatory Requirements. Notwithstanding any other provision of the Agreement, Customer will not hold Athennian responsible for any losses or claims arising from or relating to any failure to comply with Customer Regulatory Requirements.
5.6 Athennian Disaster Recovery Plan.
A summary of Athennian’s current disaster recovery plan is available on the Legal Terms Portal. Athennian may change its disaster recovery plan from time to time. From time to time at the request of Customer, Athennian will provide to Customer an updated summary of its then current disaster recovery plan. Customer acknowledges that the Services are provided from the data centers of the Data Center Service Provider, and that Athennian’s disaster recovery plan relies and depends on the Data Center Service Provider’s disaster recovery plan.
5.7 Changes to the Services.
Subject to Athennian’s obligations under the section titled “Warranties for Services”, Athennian may make changes to the Services from time to time, in its discretion, including to add, change or remove features or functionality. Athennian will provide Customer with not less than 60 days’ prior notice of any major change to the Services that might impact the systems of Customer. For new or additional features,functionality or Services, Athennian may require Customer to (a) sign a new Order Form or an amended Order Form, (b) agree to pay additional fees, and (c)agree to additional contract terms specific to the feature, functionality or Service.
5.8 Athennian Personnel and Subcontractors.
Athennian will be responsible for the performance of its personnel and subcontractors, and their compliance with Athennian’s obligations under the Agreement.
6. PROPRIETARY RIGHTS AND LICENSES
6.1 Reservation of Rights.
Notwithstanding anything to the contrary contained in the Agreement, Athennian and its licensors have and will retain all right, title and interest in and to the Services, Service Attributes and Third Party Content, the software and systems used to provide the Services, all code provided by Athennian that is used to integrate with the Services (even if installed on the systems of Customer or its service providers), all copies,modifications and derivative works of any of them, and all Documentation(including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights in any of them). Customer acknowledges that it is obtaining only a limited right to use the Services and Documentation. No rights are granted to Customer under the Agreement other than as expressly set forth in the Agreement.
6.2 License by Athennian for Documentation.
Athennian grants to Customer a worldwide,non-exclusive, non-transferable, royalty-free license to use the Documentation solely for Customer’s internal business purposes associated with its use of theServices, and solely for the applicable subscription term. Customer will reproduce Athennian's copyright notice on all copies of the Documentation. On the expiry of the applicable subscription term, Customer will destroy or delete all copies of the Documentation then in its possession or control.
6.3 License by Athennian for Deliverables.
Unless otherwise provided in a Statement of Work,on Customer’s payment of fees and expenses payable under a Statement of Work,Athennian grants to Customer a worldwide, non-exclusive, non-transferable,royalty-free license to copy, maintain, use and run (as applicable) each deliverable provided by Athennian to Customer under the Statement of Work,solely for Customer’s internal business purposes associated with its use of theServices, and solely for the applicable subscription term for the associated Services.
6.4 License by Customer for Customer Data and Customer Content.
As between Customer and Athennian, Customer owns all right, title and interest in and to all Customer Data and Customer Content. Customer grants Athennian, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, transmit and display Customer Data and Customer Content as necessary for Athennian to provide the Services in accordance with the Agreement. Notwithstanding any other provision of the Agreement, Customer also grants to Athennian and its Affiliates a worldwide,perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to collect Customer Data and other information relating to the provision, use and performance of the Services, in aggregate or other de-identified or anonymized forms, and to analyze and use such aggregated,de-identified or anonymized Customer Data and other information to improve and enhance the Services and for other Athennian offerings.
6.5 License by Customer for Non-Athennian Applications.
Customer grants Athennian, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy,transmit, run and display any Non-Athennian Applications and program code created by or for Customer using the Services or for use by Customer with the Services, as necessary for Athennian to provide the Services in accordance with the Agreement.
6.6 License by Customer to Use Feedback.
Customer grants to Athennian and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable(through multiple tiers) license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users.
7.1 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. Confidential Information of Customer includes Customer Data and Customer Content. Confidential Information of Athennian includes the Services and Documentation. Confidential Information of each party includes the terms of the Order Form, these Service Terms and all Statements of Work (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 (a) is or becomes generally known to the public without breach of any obligation owed by the Receiving Party to the Disclosing Party, (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (c) is received from a third party without breach of any obligation owed to the Disclosing Party, or (d) was independently developed by the Receiving Party without reference to or use of the Confidential Information of the Disclosing Party.
7.2 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) to (a) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of the Agreement and (b) except as otherwise authorized by the Disclosing Party in writing, 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 the Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those in the Agreement. Neither party will disclose the terms of the Order Form, these Service Terms or any Statement of Work 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“Confidentiality” section.
7.3 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, then the Disclosing Party will reimburse the Receiving Party for its reasonable costs of compiling and providing secure access to that Confidential Information.
7.4 Return of Confidential Information.
Except as otherwise expressly provided below, on the request of the Disclosing Party, the Receiving Party will (a) return or destroy all tangible forms of Confidential Information of the Disclosing Party in its possession or control, (b) use all commercially reasonable efforts to erase or destroy all electronic copies of such Confidential Information, and(c) certify to the Disclosing Party that such materials have been either returned, erased or destroyed, in each case except as to signed original copies of any contractual documents or other materials customarily held by the Receiving Party as legal archival material. Notwithstanding the above,the Receiving Party may retain copies of the Confidential Information of the Disclosing Party for archival, audit, legal and/or regulatory purposes.
8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES ANDDISCLAIMERS
Each party represents that it has validly entered into the Agreement and has the legal power to do so.
8.2 Warranties for Services.
Athennian warrants that during an applicable subscription term (a) Athennian will not materially decrease the overall security of the Services, (b) the Services will perform materially in accordance with the User Guide, and (c) subject to the “Non-Athennian Providers” section, Athennian will not materially decrease the overall functionality of the Services. For any breach of these warranties,Customer’s exclusive remedy and Athennian’s entire liability is Customer’s right to terminate the Agreement on 30 days’ written notice to Athennian.
8.3 Warranties for Professional Services.
Athennian warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty,Customer’s exclusive remedy and Athennian’s entire liability will be there-performance of the applicable portion of the Professional Services. IfAthennian is unable to re-perform the Professional Services as warranted,Customer will be entitled to recover the Professional Services fees paid toAthennian for the deficient Professional Services. Customer must make any claim under this warranty to Athennian in writing within 30 days of the completion of the applicable work in order to receive warranty remedies.
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 STATUTORY OR IMPLIED WARRANTIES OR CONDITIONS, INCLUDING ANY STATUTORY OR IMPLIED WARRANTY OR CONDITION OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.THIRD-PARTY CONTENT IS PROVIDED “AS IS,” AND AS AVAILABLE, EXCLUSIVE OF ANY WARRANTY WHATSOEVER. ATHENNIAN DOES NOT WARRANT THAT THE SERVICES WILL OPERATE ERROR FREE OR WITHOUT INTERRUPTION OR DELAY, THAT THE SERVICES WILL MEET ALL OF CUSTOMER’S REQUIREMENTS, OR THAT THE SERVICES SATISFY THE CUSTOMER REGULATORY REQUIREMENTS.
8.5 Future Functionality.
Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Athennian regarding future functionality or features.
9. MUTUAL INDEMNIFICATION
9.1 Indemnification by Athennian.
Athennian will defend Customer against any claim,demand, suit or proceeding made or brought against Customer by a third party alleging that the Services infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Athennian in writing of, a Claim Against Customer,provided Customer (i) promptly gives Athennian written notice of the Claim Against Customer, (ii) gives Athennian sole control of the defense and settlement of the Claim Against Customer (except that Athennian may not settle any Claim Against Customer unless the settlement unconditionally releases Customer of all liability), and (iii) gives Athennian all reasonable assistance, at Athennian’s expense. If Athennian receives information about an infringement or misappropriation claim related to the Services,Athennian may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate,subject to Athennian’s warranties under the section titled “Warranties for Services”, (ii) obtain a license for Customer’s continued use of the Services in accordance with the Agreement, or (iii) terminate Customer’s subscriptions for that Service on 30 days’ written notice and refund Customer 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 Customer arises from (i) Third Party Content or a Non-Athennian Application, (ii) Customer’s breach of the Agreement or the Documentation, (iii) use or combination of the Services with any other product or service without Athennian’s express written approval, (iv) modification of the Services or any component without Athennian’s express written approval, or(v) use of the Services for any purpose or in any manner other than as specifically contemplated by the Agreement, without Athennian’s express written approval.
9.2 Indemnification by Customer.
Customer will defend Athennian against any claim,demand, suit or proceeding made or brought against Athennian by a third party(a) alleging that any Customer Data or Customer Content infringes or misappropriates such third party’s intellectual property rights or other rights, or (b) arising from Customer’s use of the Services, Third Party Contentor Documentation in breach of the Agreement, the Documentation, any Order Form or Applicable Laws, or (c) arising from any fraud or intentional misconduct byCustomer or any personnel of Customer, its Affiliates or its or their contractors or service providers (each a “Claim Against Athennian”), and will indemnify Athennian from any damages, attorney fees and costs finally awarded against Athennian as a result of, or for any amounts paid by Athennian under a settlement approved by Customer in writing of, a Claim Against Athennian, provided Athennian (a) promptly gives Customer written notice of the Claim Against Athennian, (b) gives Customer sole control of the defense and settlement of the Claim Against Athennian (except that Customer may not settle any Claim Against Athennian unless the settlement unconditionally releasesAthennian of all liability), and (c) gives Customer all reasonable assistance,at Customer’s expense.
9.3 Exclusive Remedy.
This “Mutual Indemnification” section 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.
10. LIMITATION OF LIABILITY
10.1 Limitation of Liability.
(a) EXCEPT AS PROVIDED BELOW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT FOR THE SERVICES OR PROFESSIONAL SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE (THE “LIABILITY CAP”).
(b) NOTWITHSTANDING THE ABOVE, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO A BREACH OF AN OBLIGATION IN ANY OF THE SECTIONS TITLED “ATHENNIAN SECURITY”, “SECURITY INCIDENTS”, “CUSTOMER DATA AND PERSONAL DATA”, “CONFIDENTIALITY” OR “MUTUAL INDEMNIFICATION” OF THIS AGREEMENT EXCEED TWO TIMES THE LIABILITY CAP.
(c) THESE LIMITATIONS WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION.
10.2 Exclusion of Consequential and Related Damages.
IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, FAILURE TO REALIZE EXPECTED SAVINGS, OR INDIRECT,SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES, COVER, BUSINESS INTERRUPTION OR DOWNTIME COSTS, THIRD-PARTY DAMAGES (INCLUDING ANY SERVICE LEVEL CREDITS PAYABLE BY CUSTOMER OR ANY OTHER PERSON), LOSS OF DATA, OR PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THIS DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW AND WILL NOT LIMIT CUSTOMER'S PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION.
10.3 Limitations Protect Personnel, Etc.
The limitations and exclusion of liability above also apply to any claims against the Affiliates of a party, or the party’s or its Affiliates’ directors, officers, employees, contractors and service providers.
11. TERM AND TERMINATION
11.1 Term of Agreement.
The Agreement commences on the effective date of the Order Form and continues until all subscriptions under the Order Form have expired or have been terminated.
11.2 Term of Subscriptions.
The term of each subscription will be as specified in the Order Form. Except as otherwise specified in the Order Form,subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless eitherparty gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term. The pricing during any renewal term will increase by up to 10% above the applicable pricing in the prior term, unless Athennian provides Customer notice of different pricing at least 60 days prior to the applicable renewal term. Except as expressly provided in the Order Form, renewal of promotional or one-time priced subscriptions will be at Athennian’s applicable list price in effect at the time of the applicable renewal. Renewals will be on and subject to the Service Terms in effect on the first day of the renewal subscription term.
11.3 Termination for Breach.
Either party may terminate the Agreement for cause on 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period.
11.4 Surviving Provisions.
The sections titled “Fees and Payment”, “Customer Data and Personal Data”, “Proprietary Rights and Licenses”, “Confidentiality”,“Disclaimers”, “Mutual Indemnification”, “Limitation of Liability”, “Surviving Provisions” and “General Provisions” will survive any termination or expiration of the Agreement, together with any other sections that by their nature are intended to survive the termination or expiry of the Agreement. In no event will termination relieve Customer of its obligation to pay any fees payable to Athennian for the period prior to the effective date of termination.
Athennian may suspend use of the Services by Customer if (a) Athennian believes the suspension is reasonably needed to prevent unauthorized access to Customer Data, or for other security reasons, orto otherwise protect Athennian’s systems or customers, (b) Customer does not pay any undisputed amounts that are due under the Agreement, and such amounts are not less than 30 days in arrears, or (c) Customer is in material breach of any of the sections titled “Customer Restrictions” or “Customer Compliance with Applicable Laws and Customer Regulatory Requirements”. If one or more of these conditions occurs, then Athennian may suspend Customer’s use of some or all of the Services. A suspension will be in effect only while the condition or need exists. Athennian will give notice before Athenniansuspends, except where Athennian reasonably believes Athennian needs to suspend immediately. Athennian will give at least 30 days’ notice before suspending for non-payment.
12. GENERAL PROVISIONS
12.1 Export Compliance.
The Services, other Athennian technology, and derivatives of them may be subject to export laws and regulations of Canada,the United States and other jurisdictions. Athennian and Customer each represent that it is not named on any Canadian or U.S. government denied-party list. Customer will not permit any User to access or use any Service in a country named on Canada's Area Control List under Canada's Export and Import Permits Act, in a U.S.-embargoed country or region (currently Cuba, Iran, North Korea, Sudan, Syria or Crimea), by persons or entities prohibited from receiving U.S. exports, or in violation of any Canadian or U.S. export law or regulation.
Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with the Agreement.Reasonable gifts and entertainment provided in the ordinary course of business do not violate this restriction.
12.3 Employee Non-Solicitation.
During the term of the Agreement and for one year after the expiry of the term, Customer will not, either on its own account or for any other person, endeavour to employ or contract with any employee of Athennian, its Affiliates, or its or their contractors, with whom Customer has dealt in relation to the Agreement. This restriction will not prevent Customer from making general advertisements or other solicitations to the public or from hiring any employee of Athennian, its Affiliates, or its or their contractors who responds to such an advertisement or who otherwise initiates discussions with Customer. In the event of a breach of this provision, Customer will pay to Athennian an amount equal to six months’ salary of the applicable employee, as liquidated damages and not as a penalty.
12.4 Athennian Rules.
Athennian may from time to time establish reasonable written rules, regulations and operational guidelines with respect to Customer’s use of the Services. The rules, regulations and guidelines will be binding on Customer 15 days after delivery to Customer.
12.5 Entire Agreement and Order of Precedence.
The Agreement is the entire agreement between Athennian and Customer regarding Customer’s use of Services and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding the Order Form and all Statements of Work) is void. The Agreement may not be amended except by a written amending agreement signed by duly authorized officers of both parties. In the event of any conflict or inconsistency among the following documents, the order of precedence will be (a) the Order Form, (b) the applicable Statement of Work,(c) these Service Terms, and (d) the Documentation.
12.6 Force Majeure Events.
Neither party will be liable for damages caused by delay or failure to perform its obligations under the Agreement where such delay or failure is caused by a Force Majeure Event. This provision will not excuse a failure to make any payment when due.
12.7 Relationship of the Parties.
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture,agency, fiduciary or employment relationship between the parties.
12.8 Third-Party Beneficiaries.
There are no third-party beneficiaries under the Agreement.
Each party will obtain the other party’s prior written consent before making any public communication related to the Agreement or the Services. Notwithstanding the above:
(a) Athennian may issue a press release announcing the relationship between Customer and Athennian. Customer will have the right to review and approve the press release prior to distribution.
(b) Athennian may list Customer as a customer of Athennian on the Athennian website and on other Athennian sales and promotional materials, and may use Customer’s logos for that purpose. Any Athennian use of Customer’s logos will be subject to any applicable trademark use guidelines provided by Customer to Athennian.
All notices, requests, demands, claims, and other material communications under the Agreement must be in writing, and will be deemed duly given when delivered personally or by courier, or when delivered by email if receipt of the email is acknowledged by the intended recipient, in each case addressed to the intended recipient as follows:
If to Customer, using the contact information provided in the Order Form.
If to Athennian:
Paper Interactive, Inc., dba Athennian
340 12 Avenue SW
Canada T2R 1L5
Attention: Josh Malate, Chief Financial Officer
Either party may change its address for notice from time to time by notice given in accordance with this section.
A waiver of any term or breach of the Agreement is effective only if it is in writing and signed by or on behalf of the waiving party. No omission, delay or failure to exercise any right or power, orany waiver by either party of any breach or default, whether express or implied, or any failure to insist on strict compliance with any provision of the Agreement, will constitute a waiver of any other provision. Any waiver of any provision of the Agreement will not constitute a continuing waiver unless otherwise expressly provided.
If any provision of the Agreement is held by a court of competent jurisdiction to be contrary to Applicable Laws, the provision will be deemed null and void, and the remaining provisions of the Agreement will remain in effect.
Neither party may assign any of its rights or obligations under the Agreement, whether by operation of law or otherwise,without the other party’s prior written consent (not to be unreasonably withheld). Notwithstanding this restriction, either party may assign the Agreement in its entirety (including the Order Form and all Statements of Work)without the consent of the other party to a purchaser of all or substantially all of the assets of such party. The assigning party will obtain from the permitted assignee and deliver to the other party an undertaking in writing in favour of the other party (in form and content acceptable to the other party,acting reasonably) to be bound by and to perform all of the obligations of the assigning party under the Agreement. The assigning party and the permitted assignee will be jointly and severally liable to the other party for all of assigning party’s obligations under the Agreement. Any assignment in contravention of the above will not be effective against the non-assigning party.
The parties agree that the Agreement was drafted with the participation of both parties and will not be construed either againstor in favour of either party. All amounts specified in the Agreement or the Order Form or a Statement of Work are in US dollars, unless otherwise specified. The term “including” and similar terms will mean “including without limitation”. These Service Terms are deemed to be incorporated into any Order Form that refers to them, as if set out in full in that Order Form.
12.15 Governing Law and Venue.
The Agreement, and any disputes arising out of or related to the Agreement, will be governed exclusively by the internal laws of the Province of Alberta and the laws of Canada applicable in the Province of Alberta, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The provincial and federal courts located in Calgary, Alberta will have exclusive jurisdiction over any disputes arising out of related to the Agreement, and each party consents to the exclusive jurisdiction of those courts.
END OF SERVICE TERMS