IVVI SERVICES -TERMS AND CONDITIONS FOR SERVICES
AS OF APRIL 6TH, 2017
The following describes the terms on which Ivvi Inc. (“Ivvi”) offers you access to our sites, software applications, tools and services (the “Applications”) and may include the provision of periodic reports (the “Reports”) all as set out in the Statement of Work which is incorporated into, and forms part of, these terms:
Services: Ivvi shall provide to Company the services selected by Company as set out in any Statement of Work executed by both parties. The services include access to the Applications in accordance with the terms herein and the provision of the Reports, if applicable, to Company, which shall be delivered in the form and frequency indicated in the Statement of Work. Any services not set out in the Statement of Work are subject to additional fees.
Grant of license: Ivvi hereby grants to Company a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Applications and Reports throughout the Term. Company will not; (i) rent, lease, sell, assign or otherwise transfer rights in or to the Applications or the Reports; or (ii) remove any proprietary notices or labels on the Reports. Company will use the Applications and Reports solely for Company’s own internal use, and will not make the Applications available for timesharing, application service provider or service bureau use or otherwise use the Applications except as authorized herein. Company may present Reports or other Ivvi materials in internal presentations to outside companies but shall not distribute any of those materials to third parties.
Ownership: The Applications and Reports are the proprietary property of Ivvi. Ivvi shall at all times retain all right, title and interest, including all copyrights and other intellectual property rights, in and to the Applications and Reports, including that recorded on the original media and all subsequent copies of the Applications, regardless of the form or media in or on which the original and other copies may exist. Ivvi expressly reserves all rights not expressly granted to the Company by this Agreement. Company shall acquire no right in or title to the Applications or Reports other than the license to use the Applications and Reports as specifically set out herein.
Fees: All fees (the “Fees) are set out in the Statement of Work and are payable on the execution of the Agreement by the Parties, unless terminated in accordance with section 9 below. Fees for additional services not set out in the Statement of Work shall be in addition to the Fees and shall be agreed upon by the parties in advance.
Use Restrictions: Company agrees that it shall use the Applications only as permitted pursuant to this Agreement, and shall not use it in any unlawful manner whatsoever. Company shall not modify, adapt, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Applications, in whole or in part, nor modify, adapt, translate or create derivative works, in whole or in part, without the prior written consent of Ivvi. Company agrees not to alter, remove, deface, cover or otherwise obscure any copyright, trademark, patent or other proprietary rights, notices, and any other markings Ivvi may have placed in or on any copy of the Applications, Reports, printed materials or storage media, in order that Ivvi’s proprietary rights thereto shall be protected.
Confidentiality: “Confidential Information” includes any information relating in any way to the Applications (or any documentation and specifications relating to the Applications), any other nonpublic information that a party discloses to the other party in connection with this Agreement and that the disclosing party designates as confidential or that under the circumstances surrounding disclosure ought to be treated as confidential (even if not marked as “confidential” and whether or not protected by patent, copyright, trade secret or any other form of commercial protection), including but not limited to trade secrets, technical, business, financial and marketing information. Confidential Information does not include information (a) already in possession of receiving party without an obligation of confidentiality; (b) hereafter rightfully furnished to receiving party by a third party without a breach of any separate nondisclosure obligation; (c) publicly available without breach of this agreement (e.g. information in the public domain); (d) furnished by the disclosing party to a third party without restriction on subsequent disclosure; or (e) independently developed by receiving party without reliance on the Confidential Information. Neither party will use or disclose the other party’s Confidential Information without the other’s prior written consent except for the purpose of performing its obligations under this Agreement or if required by law, regulation or court order. In which case, the party being compelled to disclose Confidential Information will give the other party as much notice as is reasonably practicable prior to disclosing such information. Each party shall use a reasonable degree of care to protect the other party’s Confidential Information. Upon termination of this Agreement, the parties will promptly either return or destroy all Confidential Information and, upon request, provide written certification of such, provided, however, either party will not be required to destroy Confidential Information stored in back-up systems except in the ordinary course of its business and such party’s records retention policies.
Disclaimer of Warranties: Other than as provided in this Agreement and to the maximum extent permitted by applicable laws, Ivvi makes no warranty or condition of any kind, either express or implied, statutory or otherwise, with respect to the product provided pursuant to this agreement, including but not limited to the implied warranties or conditions of quality, performance, non-infringement, merchantability and fitness for a particular purpose. No oral or written information or advice given by Ivvi, its dealers, distributors, agents or employees (collectively, “Agents”) shall create a warranty or in any way increase the scope of this warranty. Company assumes the entire risk as to the use and performance of the Applications and Reports in terms of correctness, accuracy, reliability, currentness, or otherwise. Ivvi does not represent or warrant that the Applications will be provided uninterrupted or error-free, or that defects will be corrected. Ivvi may make improvements and/or changes in the Applications or Reports at any time, with or without notice.
Limitation of Liability: In no event shall Ivvi, its Agents or anyone else who has been involved in the creation, production or delivery of the Application and/or Reports provided pursuant to this Agreement be liable to Company or any other person for any direct, indirect, special, consequential or incidental damages (including without limitation, damages for loss of revenues or profits, business interruption, loss of business information, and the like) arising out of the use or inability to use the Applications or Reports, whether based on a claim or action of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if Ivvi or its Agents have been advised of the possibility of such damage or claim, or it is foreseeable. In no event shall Ivvi’s maximum aggregate liability to Company exceed the total amount paid by Company for the services provided pursuant to this Agreement. Some jurisdictions do not allow limitations on duration of an implied warranty, so the above limitation may not apply to Company.
Indemnification: Both Ivvi and Company shall indemnify, hold harmless and defend the other and its wholly owned subsidiaries and affiliates (including their respective directors, employees, officers, and agents) against any and all third-party claims, and all related liabilities incurred arising out of or relating to (i) a breach of any term or condition of this Agreement, (ii) improper and unauthorized use of the Applications by Company or (iii) violations of applicable laws, rules or regulations. The indemnifying party reserves the right, at its own expense, to assume the exclusive defense and control of any matter subject to indemnification.
Term, Termination and Non-Binding Renewal: The initial term of the Agreement is set out in the Statement of Work. Thereafter, for convenience and to ensure no service interruption, the same Terms and Conditions will remain in effect upon renewal, subject to Company’s right to cancel at least thirty (30) days prior to the end of the current term. Company may terminate this Agreement and the provision of the services at any time for any reason, however, no refund of Fees will be payable by Ivvi. Ivvi may cancel service at any time for any reason, refunding proportionate Fees for unused services payable to Company.
Non-Solicitation: Company agrees not to directly or indirectly recruit, solicit or otherwise attempt to employ Ivvi employees for a period of two (2) years post-employment with Ivvi. Ivvi agrees not to directly or indirectly recruit, solicit or otherwise attempt to employ Company employees for a period of two (2) years post-employment with Company.
Promotion of Services: Ivvi may use Company’s name as a reference in its client lists, brochures, and electronic media and the parties may issue a mutually agreed upon press release regarding Company’s engagement of Ivvi. Company hereby grants to Ivvi a non-exclusive, non-transferable, royalty-free right and license to copy and display Company’s trademarks and logo (subject to the terms and conditions of such party’s standard trademark usage guidelines) for use in Ivvi’s vendor lists, websites, case studies and other similar promotional media, subject in each case to the other party’s prior approval of Company.
Miscellaneous: Each party will be excused from performance hereunder to the extent that performance is prevented, delayed or obstructed by causes beyond its reasonable control. This Agreement (including any amendment agreed upon by the parties in writing) represents the complete agreement between the Parties concerning its subject matter, and supersedes all prior agreements and representations between the parties. If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed to the extent necessary to make it enforceable to the maximum extent permissible so as to affect the intent of the parties, and the remainder of this Agreement shall continue in full force and effect. This Agreement shall be governed by and construed under the laws of the Province of Ontario without reference to its conflict of law principles. Each Party agrees to submit to the exclusive and personal jurisdiction of the courts located in Toronto, Ontario. A waiver of any default is not a waiver of any subsequent default. The relationship between Ivvi and Company is not one of a legal partnership relationship, but is one of independent contractors. This Agreement shall be binding upon and inure to the benefit of the respective successors and assigns of the parties hereto.