cendec - Terms and Conditions

Subscription Terms and Conditions

General. This Subscription Agreement ("Agreement") is made effective on the Effective Date by and between Cendec System Inc. (“Cendec”) and Customer (as identified on Schedule 1 of this Agreement) and further defines and provides for the Services, terms and conditions provided to the Customer by Cendec for access to the System. For good and valuable consideration hereby acknowledged by the parties hereto, Cendec and Customer agree as follows:
Definitions
1. Effective Date - means the effective date of this Agreement as provided in Schedule 1 of this Agreement.
2. Monthly Service Fees - refers to the monthly charge for the Service as provided in Schedule 1 to this Agreement.
3. Service - means the services Cendec will provide to Customer as provided in this Agreement which includes access to the System, and any related support services (e.g. account set-up, data transfer, training and support).
4. System - the Cendec hardware and software modules which provides customers with operations, resources and environmental management services as provided in Schedule 1 to this Agreement.
License. Cendec has the unlimited legal right to and hereby grants a non-exclusive license to the Customer and the employees, representatives, agents, service providers and other users authorized by the Customer (collectively, the "Users"), to access and use the System in accordance with the terms and conditions of this Agreement.
Fees and Expenses. Customer will pay the Monthly Services Fees, plus all applicable taxes, in accordance with the payment schedule and terms (if any) set forth on Schedule 1, and without any deduction, set-off or withholding. All Monthly Service Fees are invoiced at the start of each calendar quarter, and will include any related document charges and/or other fees from the quarter. The Customer will also pay Cendec the cost of any travel by Cendec employees or representatives as approved in writing by the Customer, including accommodation, meal expenses, disbursements and reasonable per diem charges. All amounts invoiced are due within thirty (30) days after the invoice for those fees has been delivered to the Customer. Customer will pay Cendec simple interest on all overdue amounts at a rate of 12% per year calculated from the date payment was due until the date payment (including accrued interest thereon) is made in full.
Term. The term of this Agreement is for one (1) year from the Effective Date and shall automatically renew for additional one (1) year terms on each anniversary of the Effective Date thereafter, from year to year, unless terminated by either party by providing written notice to the other party not less than ninety (90) days prior to the expiration of the then-current term. Upon the renewal of the Term, the terms, conditions, and prices applicable to the Agreement shall remain in effect at the time of renewal.
Termination. The Customer may terminate this Agreement if Cendec breaches this Agreement and fails to remedy such breach within thirty (30) days after actual receipt of Customer's written Notice of the same, or, if such breach cannot be remedied within such thirty (30) day period, Cendec fails to commence to make good faith efforts to remedy such breach within such thirty (30) day period. Customer's notice must provide a description of sufficient detail to allow Cendec to undertake to investigate and make reasonable attempts to remedy the alleged breach and Customer agrees to reasonably cooperate with Cendec in such attempts. Cendec may, at is sole option, terminate this Agreement or suspend the Service if: (i) if the Customer fails to pay any amounts owing to Cendec when due pursuant to Schedule 1 of this Agreement and payment has not been received within ten (10) days after written Notice (as defined below) by Cendec to Customer that such payment is delinquent (provided, however, that such ten (10) day cure period shall be available to Customer only once per six (6) calendar months of the Term), or (ii) if the Customer breaches any other obligation in this Agreement and fails to remedy such breach within thirty (30) days after actual receipt of Cendec's written Notice of the same or, if such breach cannot be remedied within such thirty (30) day period, Customer fails to commence to make good faith efforts to remedy such breach within such thirty (30) day period.
Effect of Termination. Upon termination of this Agreement:
1. The Customer agrees to pay any and all outstanding charges as well as all future monthly obligations to the end of Term should it terminate for any reason, other than a breach by Cendec that it fails to remedy as provided in Section 6; and
2. the Customer will immediately cease all use of the Services, and will cause its Users to immediately cease their use of the Services; and
3. each party will immediately cease all use of the other party's trade-marks and will permanently erase or delete those trade-marks from all web pages, advertisements and materials in its possession or control.
Limitation of Liability. Cendec’s liability to the Customer hereunder (whether in contract, warranty, tort or otherwise; and notwithstanding any fault, negligence, representation, strict liability or product liability of Cendec) under this Agreement with regard to the Services, the System or any other items subject to this Agreement, shall in no event exceed the total compensation actually paid by the Customer to Cendec under this Agreement within the immediately preceding three (3) month period prior to Customer's written claim of liability submitted. Cendec will not be liable in any way to the Customer or the Users for any damage, liability, cost or expense incurred by any of them as a consequence of receiving any Harmful Component through use of the System or the Services or as a consequence of an intended recipient not being able to send or not receiving a transmission through the use of the System or the Services.
Intellectual Property. The System and all original information, images, artwork, text, video, audio, pictures and other materials on the System (the "Materials") are the property of Cendec and protected by copyright laws. As between Cendec and the Customer, Cendec owns all right, title and interest in and to all aspects of the System including the software that operates the System, the graphical design and "look and feel" of the System and its user interface, code libraries, data exchange systems, and all modifications, customizations and additions thereto (collectively, the "Software Components"), the Materials, and all work product created by or for Cendec in association with the System, and all intellectual property rights in the foregoing, excluding the Customer Data (defined in Section 10). The Customer and its Users may download the Materials to the extent necessary to use the System for the purposes of this Agreement, but the Customer will (and will cause its directors, officers, employees and agents to) not otherwise copy, reproduce, republish, post, transmit, display, perform, distribute, modify or create derivative works from the Materials without prior written approval from Cendec in its sole discretion.
Customer Data. Cendec will not own the data or documents (the "Customer Data") entered or stored in the System by Customer or transmitted through the System. Cendec may manipulate, format, display, transmit to third parties and otherwise use the Customer Data as necessary to perform its obligations under this Agreement, to provide support and customer service to the Customer and the Users, and to develop, maintain and improve the System. Cendec acknowledges that the Customer Data contains confidential information, and Cendec agrees not to disclose the Customer Data, or permit the Customer Data to be disclosed, except as permitted by this Agreement or as otherwise permitted or requested by the Customer. Cendec may keep copies of the Customer Data for a reasonable amount of time during the Term and any extension thereof to assist Customer in providing the Services. Cendec will maintain the confidentiality of all Customer Data per Sections 11 and 13 below. At any time prior to termination of this Agreement, or in the event of a termination due to a breach by Cendec, within thirty (30) days following the termination date, Customer may download the Customer data at no charge. If requested by the Customer, Cendec will timely transfer Customer Data onto Customer supplied storage device(s). Customer will be billed for the actual cost related to the transfer process. The storage device(s) containing Customer Data will be released to Customer upon full payment of any and all undisputed amounts due to Cendec for all Services provided to Customer up to, and including, the termination date and any reasonable fees due to Cendec for Customer Data transfer. If Customer terminates due to a breach or nonrenewal by Cendec, Cendec will transfer all Customer Data onto such storage device(s) at no additional cost within thirty (30) days following the Termination date. Once all Customer Data has been acknowledged by Customer as having been received (evidenced through download by Customer or receipt of the storage device by Customer), or Customer has requested Customer Data be deleted by Cendec, all such Customer Data in Cendec’ s possession or control will be immediately and permanently deleted or destroyed.
Confidential Information. Cendec will (and will cause its directors, officers, employees and agents to) keep Customer's Confidential Information strictly confidential and not disclose it to anyone unless permitted by this Agreement, or Customer consents, or Cendec is required by law or court order to do so. Customer will (and will cause its directors, officers, employees and agents to) keep Cendec’ s Confidential Information strictly confidential and not disclose it to anyone unless permitted by this Agreement, or Cendec consents or Customer is required by law or court order to do so. This section will survive termination of this Agreement. "Customer's Confidential Information" means all information, data and financial information relating to the business, commercial strategies, pricing, personnel, customers, products or services of Customer, but excludes any information that: (i) is related to the design or development of integration, procurement or vendor management software, (ii) was lawfully in Cendec’ s possession before receiving it from Customer, (iii) is provided in good faith to Cendec by a third party without breaching any rights of Customer or any other party, (iv) is or becomes generally available to, or accessible by, the public through no fault of Cendec; or (v) is independently developed by Cendec. "Cendec's Confidential Information" means all information, data and financial information relating to the business, commercial strategies, pricing (including the fees in this Agreement), personnel, customers, products or services of Cendec, but excludes any information that: (i) was lawfully in Customer’s possession before receiving it from Cendec, (ii) is provided in good faith to Customer by a third party without breaching any rights of Cendec or any other party, (iii) is or becomes generally available to, or accessible by, the public through no fault of Customer, or (iv) is independently developed by Customer.
Representations. Cendec represents to the Customer that all Services to be provided under this Agreement will be performed in a good and workmanlike manner, in accordance with the standards of care and diligence normally practiced by software firms performing services of a similar nature. CENDEC DISCLAIMS AND WILL NOT BE BOUND BY ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES WHATSOEVER, WHETHER EXPRESS OR IMPLIED, OTHER THAN THE ONES EXPLICITLY SET FORTH HEREIN.
Cendec Responsibilities. Cendec will: (a) take commercially reasonable measures to keep the System and the Customer's Data on it secure; (b) retain all such rights and interests in and to the System as are necessary and sufficient to provide the Services; (c) make reasonable efforts to schedule any downtime for maintenance, upgrades and repair of the System at times that will minimize disruption to the operation of the System. Notwithstanding the foregoing, there may be downtime during some Users' or Customer's business hours. The System may be unavailable from time to time without notice due to hardware and software malfunctions, repairs, power outages, hackers, denial of service attacks and unforeseeably large service demands. If this occurs, Cendec will take reasonable steps and use its best efforts to restore the availability of the System as soon as reasonably possible. Cendec will make reasonable efforts to provide the Customer with at least two (2) clear days' notice of downtimes.
Customer Responsibilities. The Customer will: (a) reasonably cooperate with Cendec and respond to all reasonable requests in a timely way; (b) make reasonable efforts to report to Cendec all malfunctions and errors it discovers in the System; (c) take commercially reasonable measures to maintain the confidentiality and security of all usernames and passwords issued to the Customer and the Users; (d) be responsible and liable for all activities conducted under its Users' usernames and passwords; (d) promptly notify Cendec in writing if it becomes aware of any unauthorized use of any username or any other security breach regarding the System; (e) not resell the Services or authorize any third party (other than a User) to use or access those services without Cendec’ s prior written consent;(f) ensure that it and the Users: (i) have the knowledge, skill, technology and communications connections necessary to access and use the System, including a computer workstation with the minimum features specified by Cendec from time-to-time; (ii) use the Services in a manner consistent with all applicable laws and regulations; (iii) do not hack, reverse engineer, disable, disrupt or interfere with the functioning of the System or the Services; (iv) take reasonable measures to not upload to, or transmit from the System or the Services anything that, if reproduced, published, transmitted or used, may be defamatory, threatening, abusive, obscene, pornographic, harmful or invasive of anyone's privacy, may violate any law including but not limited to copyright, trade-mark, trade secret, patent, privacy or other laws, or may give rise to civil or other liability; (v) take reasonable measures to not upload or transmit, or permit anything to be uploaded or transmitted, to the System or the Services any data, file or software that contains a virus, Trojan horse, worm or other harmful component (collectively, "Harmful Components"); and (vi) do not use the System or the Services for spamming, other advertising, other bulk message transmission or other similar activity that is objectionable to Cendec in its sole discretion.
Harmful Components. The Customer acknowledges that, as with all systems that permit messaging, file upload or transmission, the System and the Services carry with them a risk that the Customer or a User may send or receive a message, or upload or transmit a file, that contains Harmful Components, and that Harmful Components may cause damage to the Customer's or the Users' computers, systems or electronic files, and may spread and may cause damage to other persons' computers, systems or electronic files. Cendec will take reasonable measures to guard against Harmful Components, but, Cendec will not be responsible or liable for any damages (financial or otherwise) caused to Customer or any User by any Harmful Components.
Disclaimer. Cendec is not responsible for the content of any of the documents, instructions or data transmitted using the System or the Services (the "Content"), and will not be liable to the Customer or any User or any third party for any claims or damages whatsoever in connection with the Content. From time to time, Cendec may in its sole discretion add new features to the System or otherwise modify or change the System (including its functionality, its visual design and "look and feel") as long as these modifications or additions do not impair the pre-existing features of the System.
Miscellaneous
1. Indemnity. Each party will indemnify and hold the other harmless from and against all claims, fines, taxes, damages, expenses, costs (including reasonable lawyers' fees) incurred by such party, its officers, members, managers, directors, shareholders, employees or representatives for any reason relating directly or indirectly to the other's breach of any of its obligations, representations or warranties in this Agreement.
2. Law and Courts. This Agreement shall be governed by and construed in accordance with the laws of the province of Alberta, Canada for any legal action arising out of this Agreement or the performance or non-performance of their obligations under this Agreement. The parties hereby attorn irrevocably to the exclusive jurisdiction of the Calgary, Alberta, Canada courts. No Agency, neither party is the agent or partner of the other party.
3. Counterparts. This Agreement may be executed in as many counterparts as may be require, each of which shall be an original and all of which shall constitute but one and the same document. In the event that any signature is delivered by facsimile transmission, or by e-mail delivery of a “.pdf” format data file, such signature shall create a valid and binding obligation of the party executing (or on whose behalf such signature is executed) with the same force and effect as if such facsimile or “.pdf” signature page were an original thereof.
4. Further Assurances. The parties will execute and deliver to each other all other supplemental agreements and other instruments and take any other actions necessary to give full effect to this Agreement and to make this Agreement legally effective, binding, and enforceable as between them and as against third parties.
5. Entire Agreement. This Agreement, together with its Schedules constitutes the entire agreement between the parties with respect to the System and the Services. There are no representations or warranties, express or implied, statutory or otherwise and no agreements collateral to this Agreement with respect to the System or the Services, other than as expressly set out or referred to in this Agreement. This Agreement will bind and benefit each of the parties including their respective lawful successors and permitted assigns.
6. Force Majeure. No party will be liable for any non-performance or delay in performance by that party that is due wholly or in part to fire, flood, any act of God, riot, act of war (whether or not declared), terrorism, change in law or any other cause beyond the reasonable control of the party. In the event a Party’s excused failure to perform continues for thirty (30) or more consecutive days, the performing Party may terminate all or any portion of this Agreement without further liability to the non-performing Party. This provision shall not impair either Party’s right to terminate this Agreement in accordance with Section 6.
7. Assignment. Either party may assign this Agreement with the prior written consent of the other party, which consent will not be unreasonably withheld, conditioned or delayed.
8. Severability. The invalidity or unenforceability of any term or provision of this Agreement will not affect any other term or provision of this Agreement; the remaining terms and provisions will continue in full force and effect. To the extent reasonably possible, the parties will negotiate in good faith to agree to a substitute term that will be as close as possible to the intention of any invalid or unenforceable term if rendered valid and enforceable. Regardless, the invalidity or unenforceability of any term in any particular jurisdiction will not affect its validity or enforceability in any other jurisdiction where it is valid or enforceable.
9. Notice. All notices ("Notice") under this Agreement shall be in writing and shall be deemed given (i) when delivered personally by hand (with written confirmation of receipt), (ii) when sent by email (with confirmation of both delivery transmission and viewed), (iii) one (1) business day following the day sent by overnight courier (with written confirmation of receipt) or (iv) if mailed by registered, certified or express mail, either five (5) days after the date on which the envelopes containing the Notice and copy are deposited in the mail, properly addressed, and with sufficient postage prepaid, or on the actual date of receipt, whichever is earlier, in each case at the addresses and e-mail addresses as provided on page 1 of this Agreement (or to such other address or e-mail address as a party may have specified by Notice given to the other party pursuant to this provision).