Policies
Terms and Conditions – VMS Software License
These General Terms and Conditions apply to the agreed terms (the “Agreed Terms”) between MAD Elevator Inc. (“MAD”) and the customer identified on those Agreed Terms (“Customer”). The Agreed Terms and these terms and conditions form the agreement between MAD and Customer.
1. Definitions
In this agreement the following terms have the following meanings:
Customer Data: any data, information or material (including Personal Data) that Customer or any User processes, stores, or transmits using the Software or Hosted Services
Connected Elevator: an elevator that Customer connects to its Platform account using the Connecting Technology
Connecting Technology: the hardware, software, technology and connections described in the Documentation that must be installed in an elevator for it to be able to be a Connected Elevator
Documentation: the user guides and documentation for the Software accessible at www.madelevator.com, as updated from time to time
Fees: the fees specified in the Agreed Terms
Harmful Components :viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs
Hosted Services: the hosted software services available through the Platform for access and use by Customer and its Users via internet access
Licence: the licence regarding the Platform and Hosted Services described in the Agreed Terms
Open-Source Components: any software component that is subject to any open-source copyright licence agreement, including any GNU General Public License or GNU Library or Lesser Public License, or other obligation, restriction or licence agreement that substantially conforms to the Open Source Definition as prescribed by the Open Source Initiative or otherwise may require disclosure or licensing to any third party of any source code with which such software component is used or compiled
Personal Data: any information or data relating to an identified or identifiable natural person
Platform: MAD’s proprietary online elevator monitoring and communications software platform
Representative: with respect to a party, that party’s employees, officers, directors, consultants, agents, independent contractors, service providers, subcontractors and legal advisors (and, with respect Customer, includes Users)
Supported Environment: the hardware and operating system platform and internet connections that meet or exceed MAD’s recommended specifications from time to time for accessing and using the Platform and Hosted Services, as set out in the Documentation
Term: This agreement’s term, as set out in section 2.1
Third-Party Materials: materials and information, in any form or medium, that are not proprietary to MAD, including any third-party: (a) documents, data, content or specifications; (b) Open-source Components or other software, hardware or other products, facilities, equipment or devices; and (c) accessories, components, parts or features of any of the foregoing.
Usage Data: data or information generated by MAD with respect to Customer’s and its Users’ use and operation of the Software and Hosted Services, but for greater certainty, excludes any Customer Data.
Users: Customer’s or its authorized contractor’s employees and contractors that are authorized by Customer to access and use the Software or Hosted Services under the Licence
2. Term, Renewal and Termination
(a) This agreement commences on the Effective Date and will continue for an initial term of 12 months, unless earlier terminated in accordance with its terms. This agreement will automatically renew for successive 12-month renewal terms unless either party gives written notice of non-renewal at least 30 days before the end of the initial term or then-current renewal term. (The initial term and all renewal terms are collectively the “Term”.)
(b) This agreement may be terminated at any time as follows, without limiting any other available rights or remedies:
(i) by MAD, immediately on written notice, if Customer fails to pay any amount when due and that failure continues for more than 10 days after MAD’s written notice of that failure;
(ii) by either party, effective on written notice, if the other party materially breaches this agreement (except as separately addressed in this section 2.2) and that breach remains uncured 30 days after the non-breaching party delivers written notice of the breach
(iii) by MAD, effective immediately, if Customer: (i) is dissolved, liquidated or wound-up or takes any corporate action for such purpose; (ii) becomes insolvent or is generally unable to pay its debts as they become due; (iii) becomes the subject of any voluntary or involuntary bankruptcy proceeding under any bankruptcy or insolvency law; (iv) makes or seeks to make a general assignment for the benefit of its creditors; (v) applies for, or consents to, the appointment of a trustee, receiver, receiver-manager or custodian for all or a substantial part of its property; or (vi) ceases to carry on its business in the normal course.
(c) Upon this agreement’s expiration or early termination for any reason: (a) the Licence will immediately terminate; (b) Customer will immediately cease accessing and using the Platform and Hosted Services; (c) Customer will immediately pay all sums owing to MAD; (d) MAD may immediately cease providing access to and use of the Platform and Hosted Services; (e) MAD will retain Customer Data as set out in Section 9.5; (f) within 10 days after expiry or termination, Customer will destroy all copies of the Documentation then in Customer’s possession or control; and (g) Sections 3.c, 3.d, 3.e, 6.c, 7, 8, 9.b, 9.e, 9.f, 9.g, 12, 15, 16, 17, 18, 19, 21, 22 and 23 of this Schedule A, and any other right, obligation or provision under this agreement that by its nature should survive this agreement’s termination or expiration, will survive this agreement’s termination or expiration.
(d) Without limiting any of MAD’s other available rights or remedies, if any act or omission of Customer or its Users gives rise to a breach or potential breach of this agreement then MAD may, acting reasonably, immediately suspend (including by using disabling code, technology or devices in the Platform or Hosted Services or any other lawful means) Customer’s rights to access and use the Platform and Hosted Services pending MAD’s investigation of the breach or suspected breach and implementation of a resolution satisfactory to MAD.
3. Fees and Payment
(a) MAD reserves the right to change its Fees from time to time upon written notice to Customer, and the changed Fees will apply and be effective on the next billing period; and
(b) except as expressly set out otherwise in this agreement, Fees are non-refundable upon payment.
(c) If Customer fails to make any payment when due, then in addition to all other remedies that may be available to MAD: (a) MAD may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly (19.56% per year compounded annually) from the date that payment was due until the date the outstanding amount, including all accrued interest, is paid in full; (b) Customer will reimburse MAD for all costs incurred by MAD in collecting any late payment of amounts due or related interest, including legal fees, disbursement and charges and collection agency fees; and (c) MAD may do one or more of the following: (i) suspend or disable Customer’s access to and use of the Platform and Hosted Services under section 2.4; (ii) withhold, suspend or revoke the Licence; (iii) terminate this agreement under Section 2.2.
(d) All Fees and other amounts payable by Customer under this agreement are exclusive of taxes and similar assessments. Without limiting the previous sentence, Customer is responsible for all goods and services, harmonized sales, sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental or regulatory authority on any amounts payable by Customer under this agreement hereunder, other than any taxes imposed on MAD’s income.
(e) If Customer is required under the laws of any applicable jurisdiction to deduct any withholding taxes from payments to MAD, then (a) Customer will notify MAD before withholding those taxes; (b) the Fees or other charges payable by Customer for the access to and use of the Platform and Hosted Services will be increased so that the actual amount received by MAD, net of all taxes, will be equal to the Fees or other charges set out in the Agreed Terms or the applicable invoice; and (c) Customer will promptly provide MAD with the official receipt of payment of those taxes from the appropriate taxing authority.
(f) Customer will pay all amounts payable to MAD under this agreement in full without any set-off, recoupment, counterclaim, deduction, debit or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable law).
4. Connected Elevators and Connecting Technology
(a) Customer may use the Hosted Services to add or remove Connected Elevators from Customer’s account from time to time in accordance with Customer’s business needs. Customer acknowledges and agrees that: (a) Customer will only be able use the Hosted Services to view and communicate with Connected Elevators; (b) as soon as Customer removes a Connected Elevator from its account, Customer will no longer be able to view or communicate with that elevator using the Hosted Services; (c) only elevators that have had the Connecting Technology correctly installed and configured in accordance with the manufacturer’s specifications and applicable laws are capable of being Connected Elevators; (d) Customer, and not MAD, is responsible for ensuring that the Connecting Technology is correctly configured and installed in accordance with the manufacturer’s specifications and applicable laws in each elevator that the Customer wishes to add as a Connected Elevator, (e) Customer, and not MAD, is responsible for operating, maintaining, and repairing the Connecting Technology in accordance with the manufacturer’s specifications and applicable laws in each Connected Elevator; (f) the Hosted Services may not function properly or at all with respect to a Connected Elevator whose Connecting Technology has not been correctly installed, configured, operated or maintained as described above, and MAD will not be responsible for, nor obligated to provide any support or maintenance for, any interruptions, errors, deficiencies or other problems with the Hosted Services arising from the incorrect installation, configuration, operation or maintenance of the Connecting Technology; and (g) MAD has no responsibility or liability under this agreement for the working of the Connecting Technology. If MAD supplies any Connecting Technology, whether to Customer or to a third party, MAD’s obligations and liabilities regarding that Connecting Technology will be governed solely by the separate documents and agreements regarding that Connecting Technology.
(b) Without limiting any wording in this agreement, MAD may from time to time update or modify any MAD firmware or software that is installed in a Connected Elevator if MAD determines in is sole discretion that such updates or modifications are necessary.
5. Users
Customer acknowledges and agrees that Users must be (i) Customer’s employees, or (ii) employees of a monitoring subcontractor retained by Customer. Customer will authorize access to and assign passwords and user names for its Users. Customer will: (a) be responsible for the confidentiality and use of its User’s passwords and user names, and will use commercially reasonable efforts to prevent unauthorized access to or use of the Platform or Hosted Services; (b) be responsible and wholly liable for all acts or omissions committed under any User’s username and password; (c) impose and maintain on all of its computer systems and equipment that Customer or any User uses to access and use the Platform and Hosted Services up-to-date industry-standard security measures; and (d) immediately notify MAD in writing if it becomes aware of any actual or suspected unauthorized access to or use of any username or any other security breach regarding the Platform or Hosted Services.
6. Platform and Hosted Services
(a) MAD will use commercially reasonable efforts to make the Platform and Hosted Services available; however, the Platform and Hosted Services may be unavailable from time to time. MAD will make reasonable efforts to give Customer notice of downtime, but will have no liability regarding any unscheduled downtime or scheduled downtime regardless of whether Customer received notice.
(b) Customer acknowledges and agrees that the operation and availability of equipment and systems used for accessing and interacting with the Platform and Hosted Services, including public telecommunication networks, computer networks and the internet (whether supplied by MAD, Customer or a third party) can be unpredictable and may from time to time interfere with or prevent access to or use of the Platform and Hosted Services. MAD is not in any way responsible for any such interference with or prevention of Customer’s or any User’s access to or use of the Platform or Hosted Services.
(c) Customer acknowledges and agrees that, as with all systems that permit file upload or transmission over the internet, the Hosted Services carry with them the risk that Customer or a User may send, receive, upload, download or transmit a file that contains Harmful Components, and that Harmful Components may damage Customer’s or its Users’ computers, systems and electronic files, and may spread and damage other persons’ computers, systems and electronic files. MAD is not responsible if Customer’s electronic communications to or from or through the Hosted Services, or the Customer Data, contain Harmful Components, and is not responsible if those electronic communications or the Customer Data are lost, delayed, altered, intercepted or stored without authorization during the transmission of any data whatsoever across networks outside of MAD’s control.
(d) Customer acknowledges and agrees that the Platform and Hosted Services are subscription-based and that MAD may modify the Platform and Hosted Services from time to time and that, if MAD does so, MAD may update the Documentation accordingly.
7. Safety Restrictions
(a) Customer acknowledges and agrees that MAD does not have the ability to use the Platform or Hosted Services to monitor for emergencies, to notify Customer or any other party of an emergency, or to dispatch emergency response personnel. As between MAD and Customer, Customer has the sole responsibility for monitoring, identifying and responding to safety and emergency events in or involving Connected Elevators.
(b) MAD makes no warranty or representation that use of the Platform or Hosted Services will affect or increase any level of safety or emergency response. MAD expressly disclaims that, and Customer acknowledges that MAD cannot and does not guarantee that, the Platform or the Hosted Services will be available and operational 100% of the time.
(c) If the Platform suffers a general outage, MAD’s entire responsibility is to send a notification to the contact email address(es) Customer has entered into the appropriate field(s) in the Platform. If Customer does not enter contact email addresses in the appropriate fields then Customer and its designees will not receive these notices.
8. Additional Restrictions
(a) Except as expressly permitted in this agreement Customer will not: (i) possess, operate, copy, sell, license, use or in any other way take the benefit of the Platform, Hosted Services or Documentation; (ii) rent, lease, rent resell, sublicense, lend, time-share, assign, distribute, publish, transfer or otherwise make available the Platform, Hosted Services or Documentation to any third party, including on or in connection with the internet or any time-sharing, service bureau, cloud or other technology or service; (iii) send or store on or through the Platform or any Hosted Service materials it knows to be infringing or unlawful or to have any Harmful Components; (iv) modify, correct, adapt, translate, enhance or create derivative works or improvements of any Platform, Hosted Services or Documentation; (v) avoid, circumvent, bypass or disable any access control technology, security device, protocol, or technological protection mechanism that may be included or established in or as part of any of the Platform or Hosted Services, any hardware or software used to provide the Platform or any Hosted Services, or any third-party hardware, software or services; (vi) reverse engineer, decompile, decode, or disassemble the Platform or any Hosted Services or otherwise attempt to derive or gain access to the Platform’s or any Hosted Service’s source code; (vii) remove, delete, obscure or change any trademarks, terms of the Documentation, warranties, disclaimers or proprietary marks or notices on or relating to the Platform, Hosted Services or Documentation; (viii) access or use the Platform, Hosted Services or Documentation in any manner or for any purpose that infringes, misappropriates or violates any third party’s intellectual property right, privacy right or other right, or that violates applicable laws; (ix) access or use the Platform or any Hosted Services or Documentation for: (A) the purpose of developing, using or providing a competitive product or service or copying its features or user interface; (B) the purpose of product evaluation, benchmarking or other comparative or competitive analysis; or (C) any other purpose that is to MAD’s detriment or commercial disadvantage; (x) permit access to the Platform or any Hosted Service or Documentation by a direct competitor of MAD; (xi) attempt to gain unauthorized access to, or disrupt the integrity or performance of, the Platform or any Hosted Services or Documentation; or (xii) authorize, allow, assist or instruct any third party to do any of the above.
(b) CUSTOMER IS SOLELY RESPONSIBLE FOR USING THE PLATFORM, HOSTED SERVICES AND DOCUMENTATION IN ACCORDANCE WITH ALL APPLICABLE LAWS. Without limiting the previous sentence, Customer, and not MAD, is responsible for complying with: (i) any laws relating to the recording or sharing of video or audio content; (ii) any laws requiring that notice be given to or that consent be obtained from third parties with respect to Customer’s use of the Platform or Hosted Services (for example, laws requiring that notice be displayed advising others that audio/visual recording is taking place); and (iii) any laws governing the monitoring of employees or other personnel. If Customer’s use of the Platform or Hosted Services is prohibited by applicable laws, then Customer is not authorized to use the Platform and Hosted Services. Customer hereby releases MAD from any claims or liabilities arising from or in connection with Customer using the Platform or Hosted Services in a way that contravenes applicable law.
9. Customer Data
(a) As between the parties, Customer owns and has control over Customer Data. MAD does not own Customer Data, may not sell Customer Data, and will only have the right to use Customer Data as set out in this agreement. Customer grants to MAD a royalty-free, nonexclusive, worldwide, right and licence (with the right to sublicense through multiple tiers) to use, copy, store, process, transmit and display Customer Data as necessary to provide the Hosted Services.
(b) Customer acknowledges that the Platform’s functionality includes a live video stream of the interior of each Connected Elevator, and that Customer may generate or collect Personal Data through that functionality or otherwise through the use of the Platform and Hosted Services.
(c) Customer will be considered the data controller for any Personal Data contained in the Customer Data. Customer will have sole responsibility for determining if the collection, storage, and use of its Personal Data complies with applicable law, for making all required disclosures, giving all required notices and obtaining all required consents relating to the activities described in this agreement, and otherwise complying with all applicable laws relating to Personal Data.
(d) Customer acknowledges and consents to the following: (a) the Hosted Services may require Customer Data to be transferred to a country outside of Customer’s country or the country where the Customer Data originated, and that applicable laws in those other countries might permit foreign governments, courts, law enforcement or regulatory agencies to access Customer Data in those countries; (b) MAD may transfer Customer Data to its affiliates and business partners (like backbone network providers) for the sole purpose of performing its obligations and exercising its rights under this agreement, provided that MAD will comply with its confidentiality and data protection obligations set out in this agreement; and (c) MAD may disclose Customer Data to law enforcement agencies as required or permitted by applicable law.
(e) Unless otherwise expressly agreed in writing that is signed by MAD’s authorized representative, MAD will have no obligation to retain Customer Data following 30 days after the Licence terminates. Customer will have 30 days from the date the Licence terminates to request a copy of the Customer Data, which MAD will make available to Customer in the same format maintained by MAD.
(f) Customer represents and warrants that it owns all right, title and interest, or possesses sufficient license rights, in and to the Customer Data as may be necessary to permit the uses contemplated under this agreement. Customer bears all responsibility and liability for the accuracy and completeness of the Customer Data and MAD’s access, possession and use of Customer Data as permitted in this agreement.
(g) MAD may generate, collect, maintain, process and use Usage Data based on Customer’s and its Users’ use and operation of the Platform and Hosted Services, including information about Customer’s computers, systems and software, in order to improve MAD’s products and services. MAD may extract and create anonymized data from any Usage Data, provided that any such extracted data does not identify the name of Customer or any User, or any Personal Data. Customer grants MAD a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, and otherwise use and display Customer Data incorporated within the Usage Data. MAD owns all rights, including all intellectual property rights, in and to all such extracted data and all Usage Data, and may copy, modify, create derivatives from and otherwise exploit all such data as MAD sees fit.
10. Customer’s Responsibilities
(a) Customer is responsible for Customer’s and its Users’ compliance with this agreement and will access and use the Platform and Hosted Services only in accordance with this agreement, the Documentation and applicable laws and government regulations.
(b) Without limiting Section 10.1, Customer will comply with all import/export control or similar laws and regulations regarding use of the Platform, Hosted Services, Documentation, or technical data.
(c) Customer will, at its sole expense, be solely responsible for supplying, configuring and maintaining the hardware, software and licences, telecommunication and internet equipment, connections and services necessary for providing a Supported Environment that enables Customer to access and use the Platform and the Hosted Services.
(d) MAD will not be responsible for, nor obligated to provide support and maintenance for, interruptions, errors, deficiencies or other problems with the Platform or Hosted Services arising from Customer’s failure to provide a Supported Environment. MAD has no responsibility for the working of Customer’s computer and telecommunications equipment and networks, any other computer equipment or software, or internet access.
11. Security Measures
The Platform and Hosted Services may contain technological measures designed to prevent unauthorized or illegal use of the Platform or Hosted Services. Customer acknowledges and agrees that: (a) MAD may use these and other lawful measures to verify Customer’s compliance with this agreement and enforce MAD’s rights, in and to the Platform and Hosted Services; and (b) MAD may deny any person access to, or use of, the Platform or Hosted Services if MAD, in its reasonable discretion, believes that person’s use of the Platform or Hosted Services would violate any provision of this agreement, regardless of whether Customer designated that person as a User.
12. Proprietary Rights
(a) MAD and its licensors own all right, title and interest (including all intellectual property rights) in and to the Platform, Hosted Services and Documentation, and all copies, derivations, modifications and enhancements thereof. MAD is licensing, not selling, the Platform, Hosted Services and Documentation to Customer, and reserves all rights except for the limited rights expressly granted to Customer under this agreement.
(b) MAD owns any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users, including suggestions relating to the operation or functionality of the Platform or Hosted Services. Customer agrees that any other material, information or other communication Customer or any of its Users transmits or provides to MAD ("Communications") will be considered non-confidential and non-proprietary, and that MAD will share title to Communications and may copy, modify, create derivatives of, disclose, distribute, license and sublicense through multiple tiers, and otherwise use the Communications, for any purposes.
(c) Customer will not use any of MAD’s trademarks, business names or other distinguishing material in association with the Platform or Hosted Services or any other product or service without MAD’s prior written consent.
13. Mutual Representations and Warranties
Each party represents and warrants to the other party that: (a) it has taken all necessary corporate action to authorize the execution, delivery and performance of this agreement; (b) it has the power and capacity to enter into and be bound by this agreement and to perform its obligations under this agreement; (c) when executed and delivered by the parties, this agreement will constitute a valid and binding obligation on it enforceable against it in accordance with its terms; and (d) this agreement’s execution by its representative whose signature is on the cover page has been duly authorized by all necessary corporate action of the party.
14. Limited Warranties
(a) Subject to the limitations and conditions in Sections 4.1, 7.1, 14.2 and 14.3, MAD warrants that MAD will provide the Hosted Services during the Term in a professional and workmanlike manner in accordance with commercially reasonably industry standards for similar services and will devote adequate resources to meet its obligations under this agreement regarding Hosted Services.
(b) The limited warranties in Section 14.1 apply only if Customer: (a) promptly notifies MAD of any warranty breach; (b) Customer is accessing and using the Platform and Hosted Services using a Supported Environment; and (c) as of the date that Customer notifies MAD of the Warranty Breach, is in compliance with all of this agreement’s terms and conditions (including the payment of all Fees then due and owing).
(c) The limited warranties set out in this Section 14 are conditioned upon the use of the Platform and Hosted Services strictly in accordance with this agreement, the Documentation and MAD’s written instructions and using a Supported Environment. Notwithstanding any other wording in this agreement, the limited warranties in this Section 14 do not apply to problems arising out of or relating to: (a) any operation or use of, or other activity relating to, the Platform or Hosted Services other than as specified in the Documentation or MAD’s written instructions, including any incorporation in the Platform or Hosted Services of, or combination, operation or use of the Platform or Hosted Services in or with, any technology (including any software, hardware, firmware, system or network) or service not specified for Customer’s use in the Documentation; (b) Customer’s or any third party’s negligence, abuse, misapplication or misuse of the Software or Hosted Services, including any use of the Platform or Hosted Services other than as specified in the Documentation; (c) the operation of, or any interruptions, errors, deficiencies or other problems with, any Connecting Technology; (d) the operation of, or access to, Customer’s or a third party’s software, hardware, system or network; (e) Open-Source Components, beta software, software that MAD makes available for testing or demonstration purposes, temporary software modules or software for which MAD does not receive a licence fee; (f) Customer’s breach of this agreement; or (g) any other circumstances or causes outside of MAD’s reasonable control (including abnormal physical or electrical stress).
(d) If MAD breaches, or is alleged to have breached, any of the warranties in Section 14.1, MAD may, at its sole option and expense, take any one or more of the following steps to remedy that breach: (a) amend, supplement or replace any incomplete or inaccurate Documentation; (b) correct or repair the Hosted Services; (c) replace the affected elements of the Hosted Services with functionally equivalent elements; or (d) terminate this agreement and, provided that Customer fully complies with of its post-termination obligations under Section 2.3, promptly refund to Customer, on a pro rata basis, the share of any Fees prepaid by Customer for the future portion of the Term that would have remained but for the termination.
(e) If MAD does not cure a warranty breach or terminate this agreement under Section 14.4 within a reasonable period after MAD receives Customer’s written notice of that breach, Customer will have the right to terminate this agreement under Section 2.2(b). Provided that Customer fully complies with its post-termination obligations under Section 2.3, MAD will promptly refund to Customer, on a pro rata basis, the share of any Fees prepaid by Customer for the future portion of the Term that would have remained but for the termination. THIS SECTION 14.5 SETS FORTH CUSTOMER’S SOLE REMEDY AND MAD’S ENTIRE OBLIGATION AND LIABILITY FOR ANY BREACH OF ANY CONDITION, WARRANTY OR REPRESENTATION REGARDING THE PLATFORM OR DOCUMENTATION OR HOSTED SERVICES CONTAINED IN THIS AGREEMENT
15. Disclaimer
(a) EXCEPT FOR THE EXPRESS LIMITED WARRANTIES PROVIDED IN SECTION 14.1, THE PLATFORM, HOSTED SERVICES, DOCUMENTATION AND OTHER PRODUCTS, INFORMATION, MATERIALS AND SERVICES PROVIDED UNDER THIS AGREEMENT ARE PROVIDED BY MAD TO CUSTOMER ON AN “AS-IS” AND “AS-AVAILABLE” BASIS AND MAD DISCLAIMS ALL WARRANTIES, CONDITIONS REPRESENTATIONS AND GUARANTEES, HOWEVER ARISING, WHETHER EXPRESS OR IMPLIED, STATUTORY OR ORAL OR WRITTEN (INCLUDING ALL CONDITIONS AND WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE), AS TO THE PLATFORM, DOCUMENTATION, HOSTED SERVICES, PRODUCTS, INFORMATION, MATERIALS AND SERVICES, INCLUDING REGARDING THE USE, SUFFICIENCY OR ACCURACY OF THE PLATFORM, DOCUMENTATION OR HOSTED SERVICES, AND MAD SPECIFICALLY AND EXPRESSLY DISCLAIMS ANY IMPLIED CONDITION OR WARRANTY OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE.
(b) WITHOUT LIMITING THE PREVIOUS PARAGRAPH, MAD MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE PLATFORM, DOCUMENTATION, HOSTED SERVICES, OR ANY OTHER MAD OR THIRD-PARTY GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE OR HARDWARE), OR ANY PRODUCTS OR RESULTS OF THE USE OF ANY OF THEM, WILL MEET CUSTOMER’S, ITS USERS’, OR OTHER PERSONS’ REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OTHER GOODS, SERVICES, TECHNOLOGIES OR MATERIALS (INCLUDING ANY SOFTWARE, HARDWARE, SYSTEM OR NETWORK) EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE DOCUMENTATION, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE, OR THAT ANY ERRORS IN THE PLATFORM, DOCUMENTATION OR HOSTED SERVICES WILL BE CORRECTED. ALL OPEN-SOURCE COMPONENTS AND OTHER THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY CONDITION, REPRESENTATION OR WARRANTY OF OR CONCERNING ANY OF THEM IS STRICTLY BETWEEN CUSTOMER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE OPEN-SOURCE COMPONENTS AND THIRD-PARTY MATERIALS. CUSTOMER ACKNOWLEDGES AND AGREES THAT ACCESS TO AND USE OF THE PLATFORM, DOCUMENTATION OR HOSTED SERVICE MAY AFFECT THE USABILITY OF THIRD-PARTY SOFTWARE, APPLICATIONS OR SERVICES.
16. Limitation of Liability
(a) IN NO EVENT WILL MAD OR ITS LICENSORS, SUPPLIERS OR SERVICE PROVIDERS HAVE ANY LIABILITY TO CUSTOMER OR ITS USERS ARISING FROM OR RELATED TO THIS AGREEMENT, THE PLATFORM, DOCUMENTATION OR THE HOSTED SERVICES, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) STRICT LIABILITY OR UNDER ANY OTHER THEORY OF LIABILITY, FOR: (i) ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, REGARDLESS OF WHETHER MAD HAS BEEN ADVISED, KNEW OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES; (ii) INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, CUSTOMERS, PRODUCTION, REVENUES, PROFITS OR OPPORTUNITIES; (iii) BUSINESS INTERRUPTIONS; (iv) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY SOFTWARE OR OPEN-SOURCE COMPONENTS OR OTHER THIRD-PARTY MATERIALS; (v) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (vi) PERSONAL INJURY OR DEATH; (vii) COST OF REPLACEMENT PRODUCTS OR SERVICES; OR (viii) LOSS OF OR DAMAGE TO REPUTATION OR GOODWILL.
(b) IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF MAD AND ITS LICENSORS, SUPPLIERS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR UNDER ANY OTHER LEGAL OR EQUITABLE THEORY OF LIABILITY) EXCEED THE AMOUNT ACTUALLY PAID BY CUSTOMER UNDER THIS AGREEMENT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE FIRST EVENT GIVING RISE TO THE CLAIM.
(c) THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
(d) No claim can be made against MAD unless it is made within one year after the event giving rise to such claim.
17. Confidentiality
(a) As used in this agreement, "Confidential Information" means all confidential 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. MAD’s Confidential Information includes the Platform, Hosted Services, Documentation and other technical information related thereto. Confidential Information of each party includes this agreement’s terms and conditions, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party before its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information.
(b) The Receiving Party will (i) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) (ii) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this agreement, and (iii) except as otherwise authorized by the Disclosing Party in writing, limit access to the Disclosing Party’s Confidential Information to those of its employees, agents, contractors and representatives who need such access for purposes consistent with this agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those contained in this agreement. The Receiving Party will be responsible and liable for any breach of these obligations by any of its employees, agents, contractors and representatives. Except as required by law, neither party shall disclose the financial terms of this agreement to any third party other than its affiliates and their legal counsel and accountants without the other party’s prior written consent.
(c) The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such 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, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing such Confidential Information.
18. Customer Indemnification
Customer will defend, indemnify and hold harmless MAD and its affiliates and contractors, and their respective officers, directors, employees, subcontractors, successors and assigns (each, including MAD, a “MAD Indemnitee”) from and against all claims, actions, judgments, damages, losses, liabilities, costs or expenses (including reasonable legal fees and costs) claimed against or incurred by any of the MAD Indemnitees in connection with any claims by a third party (other than an affiliate of a MAD Indemnitee) arising from or related to:(a) Customer’s or any of its Representatives’ negligence, fraud, abuse, misapplication, misuse or more culpable act or omission (including recklessness or wilful misconduct) with respect to the Platform, Hosted Services or Documentation, or otherwise in connection with this agreement; (b) Customer’s or any of its Representatives’ access to or use of Platform, Hosted Services or Documentation that is outside the purpose, scope or manner of use authorized by this agreement or the Documentation, or in any manner contrary to MAD’s instructions; (c) the possession or use in accordance with this agreement of the Customer Data; (d) any allegation that any intellectual property right or other right of any person, or any law, is or will be infringed, misappropriated or otherwise violated by any (i) use or combination of the Platform, Hosted Services or Documentation by or on behalf of Customer or any of its Representatives with any hardware, software, system, network, service or other matter whatsoever that is neither provided by MAD nor authorized by MAD in this agreement and the Documentation; or (ii) information, materials or technology or other matter whatsoever directly or indirectly provided by Customer or directed by Customer to be installed, combined, integrated or used with, as part of, or in connection with the Platform, Hosted Services, or Documentation; (e) personal injury or death of any individual at a location where the Platform or Hosted Services are (or were intended to be) used; or (f) facts that, if true, would constitute Customer’s breach of any representation, warranty, covenant or obligation under this agreement.
19. Infringement Indemnities
(a) MAD will defend Customer against any claim, demand, suit, or proceeding made or brought against Customer by a third party alleging that the use of the Platform, Documentation or Hosted Services in accordance with this agreement and the Documentation infringes or misappropriates that third party’s intellectual property rights (an "Infringement Claim"), and will indemnify Customer for any damages, reasonable legal fees and costs finally awarded against Customer or as finally settled by MAD, provided that Customer (a) promptly gives MAD written notice of the Infringement Claim; (b) gives MAD sole control of the defense and/or settlement of the Infringement Claim; and (c) provides to MAD all reasonable assistance, at MAD’s expense.
(b) If there is an Infringement Claim, or if MAD reasonably believes the Platform, Documentation or Hosted Services may infringe or misappropriate a third party’s intellectual property rights, MAD may in its sole discretion and in lieu of the indemnity in Section 19.1: (i) modify the Platform, Documentation or Hosted Services so that they no longer infringe or misappropriate, provided such modification provides substantially similar functionality, (ii) obtain a license for Customer’s continued use of the Platform, Documentation or Hosted Services in accordance with this agreement, or (iii) terminate the Licence upon written notice and refund to Customer any prepaid Fees, on a pro-rata basis for the time the Platform, Documentation or Hosted Services were used in accordance with this agreement.
(c) MAD has no obligation or liability under this Section 19 if the Infringement Claim arises from or relates to: (i) any access to or use of the Platform, Hosted Services or Documentation by or on behalf of Customer that is outside the purpose, scope or manner of use authorized by this agreement or in any manner contrary to MAD’s instructions; (ii) incorporation by the Platform, Documentation or Hosted Services of, or combination, operation or use of the Platform, Documentation or Hosted Services in or with, any technology (including any software, hardware, firmware, system or network) or service not provided by MAD or specified for Customer’s use in the Documentation; (iii) a modification of the Platform, Documentation or Hosted Services other than (i) by MAD in connection with this agreement, or (ii) with MAD’s express written authorization and in strict accordance with MAD’s written directions and specifications; (iv) the use or combination of the Platform, Documentation or Hosted Services with any non-MAD product, technology, information, design, specification, instruction, software, data, or material; (v) MAD’s or its authorized representative’s compliance with instructions, designs, plans or specifications furnished by or on behalf of Customer; (f) any activities of Customer after MAD has notified Customer that such activities may result in an Infringement Claim; (vi) negligence, abuse, misapplication or misuse of the Platform, Hosted Services or Documentation by or on behalf of Customer or its Representatives or a third party; (vii) any patent infringement claim alleging infringement by Customer-specific processes or methods created by or on behalf of Customer using the Platform or Hosted Services and, but for such Customer-specific method or process, the patent infringement claim would not have arisen; (viii) a patent issued on a patent application published after the Effective Date; (ix) Open-Source Components or other Third-Party Materials; (x) events or circumstances outside of MAD’s commercially reasonable control (including any third-party hardware, software or system bugs, defects or malfunctions); (xi) liabilities or losses for which Customer is obligated to indemnify MAD under Section 18.
(d) THIS SECTION 19 SETS FORTH MAD’S SOLE LIABILITY AND CUSTOMER’S SOLE REMEDY WITH RESPECT TO ANY INFRINGEMENT CLAIM.
20. Force Majeure Events
Neither party will be considered in breach of its obligations under this agreement due to any failure to perform such obligations arising out of causes beyond that party’s reasonable control (a “Force Majeure Event”), including, without limitation: acts of God; acts or omissions of any governmental authority, laws or regulations; fires, unusually severe weather, floods or other natural disasters; disease, epidemics or pandemics (including the COVID-19 pandemic and any continuation thereof); transportation stoppages or slowdowns or the inability to procure parts or materials; acts of terrorism, strikes or labour unrest; civil or military unrest; riots; degradation of telecommunications services; or where compliance this agreement would result in government-imposed penalty or violation of applicable law. A Force Majeure Event will not excuse Customer from paying accrued amounts due to MAD through any available lawful means acceptable to MAD. If a party is unable to perform for 60 consecutive days as a result of a continuing Force Majeure Event, the other party may immediately terminate this agreement upon written notice to the non-performing party.
21. Dispute Resolution
(a) The parties will use reasonable and good-faith efforts to resolve any dispute arising out of or relating to this agreement for a maximum period of 30 days. After that 30-day period, either party may refer the dispute for arbitration under to Section 21.2. The notice must set forth a detailed description of the dispute’s subject matter, including the amount involved, the position of the referring party, and the remedy sought, as well as the name of a nominee arbitrator (the “Proposed Arbitrator”) and the Proposed Arbitrator’s qualifications that would permit him or her to be appointed as arbitrator in accordance with Section 21.2.
(b) Any dispute that is referred to arbitration by a party in accordance with Section 21.1 will be determined by arbitration, by a single arbitrator, in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. subject to the following: (a) There will be a single arbitrator who will have qualifications relevant and suitable to the issue in dispute, and will be disinterested in the dispute and will be impartial with respect to all parties. The Proposed Arbitrator shall act as arbitrator and determine the Dispute unless, within ten calendar days of receipt of the notice referred to in Section 21.1 (the “Response Period”), the responding party, by written notice to the referring party, objects in writing to the appointment of the Proposed Arbitrator. If, within the Response Period, the responding party objects to the appointment of the Proposed Arbitrator and the referring party and the responding party do not otherwise agree in writing on the appointment of an arbitrator within ten calendar days of receipt of the objection, the arbitrator may be appointed by a judge of the Superior Court of Justice sitting in Toronto, Ontario upon application of either party. (b) The place of arbitration will be Toronto, Ontario. (c) Each party will bear its own costs in connection with the arbitration, provided that, if the arbitrator finds that any party has acted unreasonably, the arbitrator may, in the arbitrator’s discretion, award costs against such party. (d) The arbitrator will have the discretionary authority to grant specific performance, rectification, injunctions and other equitable relief as may be requested by a party including interim preservation orders and any party may, before or after an arbitration has commenced, apply for interim relief, including injunctive relief. (e) The arbitrator will not have the power to award any damages in excess of the limits set forth in or excluded under the limitations of liability provided in this agreement. (f) The determination of the arbitrator will be final and binding upon the parties. (g) Any order of an arbitrator may be entered with a court of competent jurisdiction for the purposes of enforcement. (h) All aspects of the arbitration will be kept confidential.
(c) The dispute resolution procedures described in this Section are the sole and exclusive procedures for the resolution of any disputes that arise out of or are related to this agreement, except that a party may seek preliminary or temporary injunctive relief from a court of competent jurisdiction if, in that party's sole judgment, such action is necessary to avoid irreparable harm or to preserve the status quo. If a party seeks judicial injunctive relief as described in this Section, then the parties will continue to participate in good faith in the dispute resolution procedures described in this Section. The parties agree that no court that a party petitions to grant the type of preliminary or temporary injunctive relief described in this Section may award damages or resolve the dispute.
22. Usage Verification and Audit
MAD or its nominee may, in MAD’s sole discretion and solely for purposes of ensuring Customer’s compliance with this agreement, inspect and audit Customer’s access to and use of the Platform and Hosted Services under this agreement at any time during the Term and for 2 years after this agreement terminates or expires. All such audits will be conducted during regular business hours, and no more frequently than once in any 12-month period in a manner that does not unreasonably interfere with Customer’s business operations. Customer will make available all such books, records, equipment, information and personnel, and provide all such cooperation and assistance, as MAD or its designee may reasonably request.
23. General Provisions
(a) Notices. All notices given under this agreement will be in writing and given either by nationally recognized overnight express courier (with all fees pre-paid) or registered mail (return receipt requested, postage pre-paid) to the address set out on the cover page, or to such alternate address that a party has specified by notice given in accordance with this Section. Notices will be deemed to be received: (a) the third business day, if sent by registered mail, postage prepaid, return receipt requested; or (b) the next business day, if sent by a nationally recognized overnight express courier. In this paragraph, “business day” means a day that is not a Saturday, Sunday or statutory holiday in Toronto, Ontario.
(b) External Documents. Any external MAD documents referred to by hyperlinks in this agreement are hereby incorporated into and form part of this agreement.
(c) Headings. The headings in this agreement are for identification and reference purposes only and will not be used in the construction or interpretation of this agreement.
(d) Precedence. Any conflict between the terms of these General Terms and Conditions and the Agreed Terms or any other schedule or other document under or relating this agreement will be resolved in favour of these General Terms and Conditions unless both parties agree otherwise in writing. All standard terms contained in any Customer purchase order or other form will be overridden by this agreement’s terms and conditions and will have no force or effect.
(e) Waiver. No waiver of any of the provisions of this agreement will be deemed to constitute a waiver of any other provision nor will such a waiver constitute a continuing waiver unless otherwise expressly provided in writing duly executed by the party to be bound.
(f) Severability. If any term of this agreement is found to be unenforceable or contrary to law, it will be modified to the least extent necessary to make it enforceable or, to the extent it cannot be made enforceable will be deleted, and the remaining portions of this agreement will remain in full force and effect.
(g) Amendment. This agreement may not be modified or altered except in writing duly executed by both parties.
(h) Persons Bound. This agreement is binding upon and enures to the benefit of the parties and their respective lawful successors and permitted assigns.
(i) No Third-Party Beneficiaries. Except for the indemnified parties set out in Section 19, who are third-party beneficiaries under this agreement, this agreement is for the sole benefit of the parties and their respective successors and permitted assigns, and nothing in this agreement, whether expressly or by implication, is intended to or will confer on any other person any legal or equitable right, benefit or remedy of any nature whatsoever.
(j) Assignment. Neither this agreement nor any rights under it may be assigned, transferred, shared or delegated by Customer without MAD’s prior written consent.
(k) Subcontractors. MAD may engage subcontractors to provide or assist in performing its obligations under this agreement, in which case MAD remains responsible for the fulfillment of its obligations under this agreement and for the provision of the Services.
(l) Parties’ Relationship. The parties are independent contractors. This agreement does not and will not be construed as creating a partnership, joint venture, agency of principal and agent, or other relationship between the parties.
(m) Entire Agreement. Customer acknowledges that it has read and understands this agreement and agrees to be bound by its terms and conditions. Customer acknowledges and agrees that this agreement is the complete agreement between the parties and that this agreement supersedes all prior agreements, oral or written and all other communications between the parties relating to this agreement’s subject. This agreement may supersede any previous rights to access and use the Platform or Hosted Services.
(n) Governing Law. This agreement and all related matters are governed solely by the laws of Ontario, Canada and the applicable federal laws of Canada. Subject to Section 21, the parties hereby irrevocably submit and attorn to the original and exclusive jurisdiction of the Ontario courts of competent jurisdiction sitting in Toronto, Canada, in respect of all disputes that the parties are permitted to take to court under this agreement. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
(o) Language. The parties have required that this agreement and all documents and notices resulting from it be drawn up in English. Les parties aux présents ont exigés que la présente convention ainsi que tous les documents et avis qui s’y rattachent ou qui en découleront soient rédigés en anglais.