Effective 10 September 2019
THIS AGREEMENT GOVERNS THE CUSTOMER’S USE OF THE SERVICES. THE CUSTOMER’S USE OF THE SERVICES SHALL CONSTITUTE AN AGREEMENT AND INTENT TO BE BOUND BY THESE TERMS AND CONDITIONS.
Definitions. Capitalized Terms In This Agreement Shall Have The Following Meanings:
1. “Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.
2. “Agreement” means this Agreement between Finaeo and Customer.
3. “Fees” means the fees payable by Customer to Finaeo for the use of the Services in accordance with this Agreement, plus all duties, levies, and taxes in association with such fees, other than taxes based on Finaeo’s net income.
4. “Initial Term” means the initial term as set out in the Order Form, or, if no Initial Term is identified, means one year.
5. “Order Form” means the form of order entered into by the Customer for the provision of the Services, howsoever named, that identifies, at a minimum, the Fees for the Services, and that may contain further terms, such as the initial term.
6. “Services” means the provision of Finaeo’s software as a service, including any updates, upgrades, patches, technology, material, modifications, bug fixes, enhancements, data, features, and contents, as it may be added or removed by Finaeo from time to time.
7. “Term” means the Initial Term, plus each extension or renewal term pursuant to this Agreement.
SERVICES AND SUPPORT
1. Subject to the terms of this Agreement, Finaeo will use commercially reasonable efforts to provide Customer the Services during the Term.
2. Finaeo will provide reasonable telephone, web-based, and / or e-mail technical support to Customer during normal business hours on such terms and conditions as Finaeo reasonably determines, in its sole discretion.
RESTRICTIONS AND RESPONSIBILITIES
Customer may use the Services only in and for Customer’s own internal purposes and business operations. Customer may only use the Services during the Term. Finaeo reserves the right to deny Customer access to the Services at any time, provided that in such a case, Customer will not be charged Fees. Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by Finaeo or authorized within the Services); use the Services or any Software for the benefit of a third party; or remove any proprietary notices or labels.
use the Services only in compliance with Finaeo’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations;
not use the Services to engage in any deceptive, misleading, illegal or unethical marketing activities or activities that otherwise may be detrimental to Finaeo and not upload to, or store within, the Services any infringing, obscene, threatening, defamatory, fraudulent, abusive, or otherwise unlawful or tortious material, including material that is harmful to children or violates third party privacy rights;
take commercially reasonable actions to prevent unauthorized access to, or use of, the Services, and notify Finaeo promptly of any such unauthorized access or use;
indemnify and hold harmless Finaeo against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services.
Although Finaeo has no obligation to monitor Customer’s use of the Services, Finaeo may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of this Agreement.
Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
CONFIDENTIALITY; PROPRIETARY RIGHTS
1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of Finaeo includes non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer means non-public data provided by Customer to Finaeo to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
2. Customer shall own all right, title and interest in and to the Customer Data. Finaeo shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with support, and (c) all intellectual property rights related to any of the foregoing.
3. Notwithstanding anything to the contrary, Finaeo shall have the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and Finaeo will be free (during and after the Term) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Finaeo offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
PAYMENT OF FEES
1. Customer will pay Finaeo the then applicable Fees for the Services. If Customer’s use of the Services requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional Fees in the manner provided herein. Finaeo reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that Finaeo has billed Customer incorrectly, Customer must contact Finaeo no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit.
2. Finaeo may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Finaeo thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection and may result in immediate termination of Services.
TERM AND TERMINATION
1. Subject to earlier termination as provided below, this Agreement is for the Initial Term, and shall be automatically renewed for additional periods of the same duration as the Initial Term, unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
2. In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Finaeo will make all Customer Data available to Customer for electronic retrieval for a period of thirty (30) days, but thereafter Finaeo may, but is not obligated to, delete stored Customer Data. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
WARRANTY AND DISCLAIMER
Finaeo shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Finaeo or by third-party providers, or because of other causes beyond Finaeo’s reasonable control, but Finaeo shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. HOWEVER, FINAEO DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND FINAEO DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Finaeo shall hold Customer harmless from liability to third parties resulting from infringement by the Services of any patent or any copyright or misappropriation of any trade secret, provided Finaeo is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; Finaeo will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Services (i) not supplied by Finaeo, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by Finaeo, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Services is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by Finaeo to be infringing, Finaeo may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Services, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, FINAEO, IT’S OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND FINAEO’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO FINAEO FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT FINAEO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Finaeo may, at its sole discretion, modify or add new functionality to the Services. Finaeo reserves the right to modify these terms and conditions at any time. In the event of material changes to these terms and conditions, Finaeo will provide notice to Customer, either through the Services, by way of an electronic (including e-mail) notification, or by other reasonable means prior to their enactment, and should Customer elect not to agree to such modified terms and conditions, Customer’s sole remedy shall be to terminate this Agreement in accordance with its terms. Customer’s continued use of the Services will be deemed acceptance thereof.
Trial Accounts. Finaeo may provide a trial account to the Customer and this Agreement shall apply to the Customer’s use of the Services during such trial account period.
1. Waiver. The waiver by any party hereto of a breach or a default of any provision of this Agreement by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
2. Force Majeure. Neither party shall be deemed in default hereunder, nor shall it hold the other party responsible for, any cessation, interruption or delay in the performance of its obligations hereunder due to causes beyond its reasonable control including, but not limited to, earthquake, flood, fire, storm or other natural disaster, act of God, labor controversy or threat thereof, civil disturbance or commotion, act of terrorism, disruption of the public markets, war or armed conflict or the inability to obtain sufficient material, supplies, labor, transportation, power or other essential commodity or service required in the conduct of its business, including Internet access, or any change in or the adoption of any law, ordinance, rule, regulation, order, judgment or decree.
1. Assignment. This Agreement is not assignable, transferable or sublicensable by Customer except with Finaeo’s prior written consent. Finaeo may transfer and assign any of its rights and obligations under this Agreement without consent.
2. Entire Agreement. This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
3. Headings. The headings used in the Agreement are for convenience and reference only and shall not affect the construction or interpretation of this Agreement.
4. Relationship. No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Finaeo in any respect whatsoever.
5. Costs. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
6. Notices. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
7. Jurisdiction. This Agreement shall be governed by the laws of Ontario, Canada and the parties agree to attorn to the exclusive jurisdiction of the courts of Ontario, Canada. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to this Agreement.