Xunto Subscription Agreement
This Subscription Agreement (the “Agreement”) is entered into by and between Okapya Software Solutions Inc. (“Okapya”) and the organization subscribing to the Xunto platform and agreeing to the terms of this Agreement (“Customer”).
If you are entering into this Agreement on behalf of your organization, that organization is deemed to be the Customer and you represent that you have the power and authority to bind that organization to this Agreement.
In this Agreement, the following terms shall have the meaning indicated below:
“Authentication ID” means a security mechanism by which an Authorized User identifies herself or himself to the Software and gains access thereto, which security mechanism may include user identification, passwords, digital certificates or any other similar process mechanism for authentication and recognition as determined by Okapya from time to time.
“Authorized User” means an end-user who Customer and Okapya have authorized to access and use the Services.
“Business Day” means any calendar day except for Saturday or Sunday or any statutory holiday observed in Canada.
“Claim” has the meaning ascribed to the term in paragraph 10.1.
“Confidential Information” means Customer Data and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, sales information, customer or supplier information, including information provided by such customers or suppliers, or any other information already furnished and to be furnished or made available by one Party to the other, whether in oral, written, graphic or electronic form including any such information exchanged during informational sessions designated as confidential, including, without limitation, information concerning a Party’s actual and potential customers and other Intellectual Property Rights of such Party.
“Customer Data” means collectively any data, files, documentation or other information: (i) that Customer or any of its Authorized Users may upload to the Platform when using the Services; and (ii) processed through the use of the Software Services.
“Documentation” means the documents, user manuals and guides with respect to the operation, use and functions of the Software, which may be amended or updated by Okapya from time to time.
“Fees” means the charges to be paid by Customer to Okapya for the performance of the Services.
“Governmental Authority” means any domestic, foreign or supranational government, whether federal, provincial, state, territorial or municipal; and any governmental agency, ministry, department, tribunal, commission, bureau, board or other instrumentality, including international institutions, exercising or purporting to exercise legislative, judicial, regulatory or administrative functions of, or pertaining to, government.
“Intellectual Property Rights” means: (a) any and all proprietary rights anywhere in the world provided under: (i) patent law; (ii) copyright law, including moral rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either: (A) Intellectual Property; or (B) the expression or use of Intellectual Property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
“Intellectual Property” means any property, tangible or intangible, that may be subject to Intellectual Property Rights, including without limitation, ideas, formulae, algorithms, concepts, techniques, processes, procedures, approaches, methodologies, plans, systems, research, information, documentation, data, data compilations, specifications, requirements, designs, diagrams, programs, inventions, technologies, software (including its source code), tools, products knowledge, know-how, including without limitation, trade secrets, and other materials or things.
“Objectionable Content” means content that infringes any applicable laws, regulations or third-party rights, and content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive or in breach of any person’s Intellectual Property Rights.
“Okapya Server” means that computer server located at Okapya’s premises, or a third-party provider of hosting and/or network services, which houses the Software.
“Party” means either Okapya or Customer; and “Parties” means both of them.
“person” means any individual, estate, sole proprietorship, firm, partnership, unincorporated association, unincorporated syndicate, unincorporated organization, limited liability company, corporation, body corporate, trustee, trust, Governmental Authority or other entity or organization and includes any successor to any of the foregoing.
“Platform” means the Software, Okapya Server and such devices and peripherals physically located with the Okapya Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure located behind the Point of Access.
“Services” means the services described in Section 2.
“Software” means the application described in the Documentation, which is accessible via a distant connection to the Platform.
“Suggestion” has the meaning ascribed to it at paragraph 5.5
“Term” means the period during which this Agreement is in force.
“User Content” means any material or content uploaded to the Platform or Software by an Authorized User.
Subject to the Customer’s and Authorized Users’ compliance with this Agreement, Okapya agrees to allow the Authorized Users to access the Software for the duration of the Term.
Customer’s rights to access and use the Services are purchased by Customer as a subscription. The subscription provides rights to access and use of the Software and the Software Services for all Authorized Users. The Customer agrees that its subscription to the Software Service is not contingent on the delivery of any future functionality or feature, or dependent on any oral or written public comments made by Okapya regarding future functionality or features.
From time to time, it will be necessary for Okapya to perform maintenance on the Platform and/or the Software. Such maintenance includes routine maintenance to ensure the continued provision of the Software Services through the continued operation of the Platform or upgrading, updating or enhancing the Platform. Okapya shall use its commercially reasonable efforts to perform such maintenance at such times to minimize the impact of any downtime of the Software to Customer. To the extent Okapya is able, Okapya shall notify Customer in advance of any scheduled maintenance by posting a message on the website, in the Software, or by sending an e-mail to the designated Customer of the scheduled maintenance time and the anticipated duration of such maintenance.
Customer shall control and maintain the security of all Authentication IDs. Customer shall be solely responsible for all instructions, commitments and other actions or communications taken under any of its Authentication IDs. Customer shall inform Okapya immediately if any Authentication ID becomes known to any third person who is not authorized to possess such information.
For the purpose of this Agreement any use of the Software under a Customer Authentication ID shall be deemed to be use by Customer.
Customer agrees that the Software may be hosted by a third-party service provider, that the Okapya Server may be one or more virtual instances provided by a third-party service provider and that the Customer Data may be hosted by a third-party service provider, at the sole discretion of Okapya. Okapya shall have no restriction (i) on selecting a third-party service provider to provide part of the Platform or provide part of the Software Services.
Only Authorized Users are authorized to use the Software.
Use of the Software is limited to the features included in the Documentation. Customer is not authorized to use the Software for any other purpose without the prior written consent of Okapya, which consent may be withheld at Okapya absolute discretion.
Okapya reserves the right to monitor and audit Customer’s and its Authorized Users’ use of the Software for the purpose of ensuring compliance with the terms of this Agreement. Any such audit may be carried out by Okapya or a third party authorized by Okapya, at its own expense.
If Okapya’s monitoring activities or audit reveals that Customer’s or any Authorized User’s use of the Software is in breach of this Agreement, including any use in breach of any applicable law, Okapya may immediately suspend and discontinue the Software Services to Customer or to a specific Authorized User, at Okapya sole discretion and without notice to Customer. Okapya shall notify Customer of such suspension as soon as reasonably possible, which notice shall set out the circumstances of the suspension. If Customer rectifies the situation to Okapya’s satisfaction, then Okapya will reinstate the Software Services. If Customer does not rectify the situation within a reasonable period of time, then it shall be deemed a material breach of this Agreement and Okapya shall be free to terminate this Agreement in accordance with Section 7.
Customer shall not:
Customer shall be responsible for any breach of the prohibitions listed above by its employees, officers, agents or contractors.
Customer agrees to pay the Subscription Fees and applicable taxes in accordance with the conditions of the selected subscription. Where applicable, Customer authorizes Okapya to charge the payment card used to pay the Subscription Fees.
Customer agrees that its subscription will automatically renew on an annual or monthly basis depending on Customer’s subscription. Customer authorizes Okapya to automatically charge Customer for the applicable Fees on or after the date of renewal unless the subscription has been terminated or cancelled in accordance with this Agreement.
Customer shall pay all taxes, however designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial and local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof, except for any taxes based on Okapya’s income.
Where Customer fails to pay any amount in accordance with the Agreement, Okapya shall have the right, in addition to any other rights or remedies available to it, to charge, and Customer shall pay, interest on such overdue amounts at the rate of 1.5% per month calculated daily, compounded monthly (18% per annum) both before and after any court judgement in respect of the same from the date such payment was due.
Customer acknowledges and agrees that, as between Customer and Okapya, Okapya owns all worldwide right, title and interest, including all Intellectual Property Rights, in and to: (i) the Platform; (ii) the Software; (iii) the “look and feel” and the user interface of the Software; (iv) Documentation; and (v) any modifications, enhancements, upgrades, updates or customization to the Software or Documentation. Customer does not acquire any rights, title or ownership interests of any kind whatsoever, express or implied, in any of the foregoing other than the authorization to use the Software through the Platform granted herein.
Okapya does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Customer Data, other than the license granted herein.
Customer hereby grants to Okapya a royalty-free, non-exclusive, non-transferable right and license to use, copy, store and display the Customer Data solely for the purpose of enabling Okapya to perform the Services under this Agreement.
Customer shall be responsible for any User Content uploaded to the Platform or the Software by an Authorized User.
Customer is solely responsible to determine the extent of its rights on and to User Content and to obtain the necessary Intellectual Property Rights assignments and/or licenses on User Content. Customer shall indemnify Okapya for any damages or costs suffered by Okapya as the result of any use by Customer of content provided by an Authorized User.
If Customer, including any employee, officer, agent or contractor of Customer, contacts Okapya about improvements to the Software, the Platform or the Software Services (“Suggestions”) Customer authorizes Okapya to use the Suggestions without restriction. Customer warrants that the Suggestions contain no information that is confidential or proprietary to third parties and agrees that (i) Okapya has no expressed or implied obligation of confidentiality with respect to the Suggestions; (ii) Okapya is authorized to use or disclose (or choose not to use or disclose) the Suggestions for any purpose whatsoever, in any way whatsoever, on any medium whatsoever, anywhere in the world; (iii) Okapya may already have considered or be in the process of developing elements identical or similar to those mentioned in the Suggestions; and (iv) Customer will not be compensated in any way with regards to Okapya’s use of the Suggestions.
Customer hereby authorizes Okapya to reasonably use Customer’s name and logo on the website promoting the Software and within the Software for the sole purpose of identifying Customer as a client of Okapya and user of the Software.
Customer may revoke such authorization in writing at any time. Okapya will stop using Customer’s name and logo within a reasonable delay after the receipt of such a written notice, in any event within 60 days of receipt.
Each Party acknowledges that all Confidential Information is confidential and proprietary information of the disclosing Party.
Each Party shall, and shall cause its employees, officers, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third party other than employees, officers, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement and which agreed in writing to keep Confidential Information confidential.
The receiving Party’s obligations set forth in paragraph 6.2 shall not apply to information:
In the event that a Party (including an employee, officer, agent or contractors of said Party) is ordered to disclose all or any part of the Confidential Information under the terms of a valid and effective order issued by a court of competent jurisdiction or by a Governmental Authority, such Party agrees to: (i) immediately notify the other Party of the existence, terms and circumstances surrounding such a request; (ii) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and (iii) if disclosure of such Confidential Information is required, exercise commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.
This term of this Agreement and the rights and obligations of the Parties hereto shall commence when the Agreement is accepted by Customer and shall continue for one year, and automatically renew for additional one year periods unless either party sends the other party a termination notice at the latest 30 days before expiration or until terminated by either party in accordance with the terms set forth below.
Either party shall have the option to terminate this Agreement immediately, upon giving written notice to the other Party if:
Customer may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if Okapya:
Okapya may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if:
Okapya will, to the extent requested by Customer, provide to Customer (or at Customer’s request to Customer’s designee) such reasonable cooperation, assistance and services to facilitate the orderly wind down, transition and migration of the Services and transfer of the Customer Data from Okapya to Customer or Customer’s designee (the “Transition-Out Services”). The provision of Transition-Out Services is contingent on Customer paying reasonable estimated fees and disbursements in advance. As part of the Transition-Out Services, Customer shall download any and all Customer Data contained on the Platform and store such Customer Data on Customer’s systems. Customer will be solely responsible to provide systems capable of receiving and storing Customer Data.
Customer Data shall be available for download from the Platform for a period of 30 days following the termination of this Agreement for any reason. Okapya shall have no obligation to keep Customer Data after such period.
Notwithstanding the termination or expiration of this Agreement for any reason, the covenants set out in this Agreement, as necessary to interpret the foregoing provisions of this Agreement shall survive any such termination or expiration.
Except as expressly provided in this Agreement, Okapya offers no warranty of any nature regarding the Services. Okapya offers no warranty with respect to the results obtained by Customer by using the Software, nor with respect to the accuracy of the results provided by the Software.
Subject to the restrictions of public order provided by law, Okapya shall not be liable for any direct and/or indirect, punitive, incidental, special, consequential or other damages of any nature whatsoever, including, without limitation, damages for loss of use of data arising out of the use or performance of the Software, or related thereto, or of the content of the Services or the inability to use the Services, whether based on contract, fault, tort, negligence, strict liability or otherwise, even if Okapya has been advised of the possibility of damages that may be caused to Customer by any interruption or suspension of access to the Software, except for direct damages that may be caused to Customer due to the interruption of access to the Software for a period of more than thirty (30) consecutive days. In such a case, Okapya liability shall be limited to the proportional reimbursement of Subscription Fees.
In any event, subject to the restriction of public order provided by applicable law but without restriction to the limitation provided above, Okapya’s liability and/or responsibility toward Customer shall be strictly limited to the Fees paid by Customer during the 12 months period preceding the event giving rise to liability.
Okapya shall defend at its own expense any claim, demand, action, proceeding or lawsuit (a “Claim”) brought against Customer or any of its Authorized Users to the extent such Claim alleges that any of the Service, Software or Documentation provided by Okapya infringes any Canadian copyright, patent or registered trademark of a third person and will indemnify and pay all damages which by final judgment or settlement may be assessed against Customer on account of such infringement, provided that:
If such Claim has occurred, or in Okapya’s opinion is likely to occur, Okapya may, at its option and expense, either procure for Customer the right to continue using the Software Services, the Software and Documentation or modify the same so that it becomes non-infringing without loss of functionality, or, at Okapya, discontinue the Service and use of the Software and refund to Customer any pre-paid and unused portion of the Subscription Fees paid by Customer in respect of use of the Software Services. The foregoing states the entire obligations of Okapya with respect to any infringement of Intellectual Property Rights of any third Person.
Customer shall defend at its own expense any Claim brought against Okapya, its affiliates, directors, officers, employees and agents, to the extent such Claim: (i) alleges, directly or indirectly, that any Customer Data infringes any Canadian copyright, patent or registered trademark of a third person; (ii) alleges, directly or indirectly, that the Customer Data contains any Objectionable Content; (iii) arises from Customer’s or its Authorized Users’ use of the Software or (iv) arises form the breach of a warranty given by Customer.
Customer shall be provided:
The Services may be subject to export laws and regulations of Canada, the United States and other jurisdictions. Customer represents that neither it nor any of its Authorized Users are named on any Canadian or U.S. government denied-party list. Customer shall not permit any Authorized User to access or use any Service in a Canada or U.S. embargoed country or region or in violation of any Canadian or U.S. export law or regulation. Customer and its Authorized Users shall not use the Services to export, re-export, transfer, or make available, whether directly or indirectly, any regulated item or information to anyone outside the Canada or the U.S. in connection with this Agreement without first complying with all export control laws and regulations that may be imposed by the Canada or U.S. Government and any country or organization of nations within whose jurisdiction Customer operates or does business.
Okapya may assign or otherwise transfer its rights and obligations under this Agreement without Customer’s prior consent. Customer may not assign or otherwise transfer its rights and obligations under this Subscription Agreement without Okapya’s prior consent.
This Agreement cannot be amended, modified, replaced, cancelled, renewed or extended, and its provisions may only be subject to a waiver of their performance by a written document executed by all the parties hereof, or in the case of a waiver to exercise any of its provisions, by the waiving party. Any party’s failing or neglecting to require the performance of any provision hereof at any time shall not affect their right to demand performance at a later time.
Any rights, remedies and any repairs enforceable by Okapya under this Agreement are cumulative and may be exercised simultaneously or separately.
To the extent possible, each provision of this Agreement must be interpreted so as to be enforceable and valid under applicable law, but in the event that any of its provisions is deemed invalid, illegal or unenforceable for any reason whatsoever under the applicable law or regulation in any jurisdiction, this invalidity, illegality or unenforceability shall not affect the validity of the other provisions of this Agreement.
This Agreement is subject to the laws in force in the province of Quebec. The parties agree to submit any dispute concerning this Agreement to the exclusive jurisdiction of the courts sitting in the judicial district of Montreal, province of Quebec.
The parties have expressly requested that this Agreement be drafted in English. Il est de la volonté expresse des parties que cette entente soit rédigée en anglais.