CUSTOMER TERMS OF SERVICE FOR CONFIGURABLE PROGRAMS
Effective: June 17, 2019
These Customer Terms of Service for Configurable Programs (the “Customer Terms”) describe your rights and responsibilities which will govern your access to and use of our Re-TRAC Connect™ service and/or our RecycleSearch™ service (collectively, the “Services” and, individually, a “Service”) as a Customer. A “Customer” is the organization that you represent in agreeing to the Agreement (defined below), which among other things requires you to pay a subscription fee in order to access and use a Service. There can only be one Customer. “You” and “your” refer to Customer. “Emerge Knowledge,” “we,” “our,” or “us” refer to Emerge Knowledge Design Inc., the owner of this website and the provider of the Services.
Our User Terms of Service (the “User Terms”) govern access and use of the Services by Authorized Users, Reporting Entities, and MMP Users. No User is required to pay a separate subscription fee to access and use a Service, but each User is required to fully comply with the User Terms.
Legally Binding Agreement
These Customer Terms (or, if applicable, your signed written agreement with us that incorporates these Customer Terms by reference) and the applicable Order Form(s) (defined below) together form a legally binding agreement between Customer and us (the “Agreement”). If any terms in the Customer-Specific Schedule (defined below) apply to Customer, those terms are also incorporated herein by reference and form part of the Agreement. Please read these Customer Terms, the applicable Order Form(s) and the Customer-Specific Schedule carefully, and ensure that the person agreeing to these Customer Terms and the Customer-Specific Schedule and signing the applicable Order Form(s) has the authority to enter into the Agreement on behalf of Customer. For greater certainty, we acknowledge that some Customers are required to use a form of purchase order, in addition to our Order Form, in order to enter into a contract for a service such as one of our Services (a “Purchase Order”). In such an event, we will accept a Customer Purchase Order, but only if it contains factual information that is consistent with the related Order Form and does not include any terms or conditions that are inconsistent with the terms and conditions of these Customer Terms.
Customer Choices & Instructions
Neither Customer nor any of its Authorized Users may access or use any Service unless and until Customer has subscribed to that Service by signing an order form with us (each, an “Order Form”) and, in so doing, has agreed to pay the applicable fees. A subscription allows a Customer’s Authorized Users to access and use the Service(s) that is/are the subject of the related Order Form (collectively, the “Subscribed Service”). Each Authorized User is required to fully comply with the User Terms. Different subscription plans are available and Customer and its Authorized Users will have access to the Subscribed Service during the subscription term (the “Subscription Term”) specified in an Order Form.
Customer-Specific Schedule and Professional Services
Please refer to the Customer-Specific Schedule, as it revises these Customer Terms in the case of certain categories of Customers referred to therein (the “Customer-Specific Schedule”).
Please contact us prior to accepting these Customer Terms if you believe that you may require our assistance in the form of services to configure your programs(s) in any Service, to assist you with onboarding, or to otherwise facilitate and/or expedite your use of any Service. Any such services that you are interested in receiving and that we are in a position to provide to you, as well as the related fees for doing so (collectively, “Professional Services”), are to be specified and agreed to in the Order Form. All Professional Services are provided remotely.
Subscription Decisions / Feedback
We may share information about our future service plans to obtain feedback. Our public statements about future service plans are an expression of intent, but do not rely on them when subscribing to a current Service. If Customer decides to subscribe to any of our Services, that decision needs to be based on the functionality or features we have made available as of the date of that subscription and not on the delivery of any future potential functionality or features.
Customer may provide us with suggestions, comments or other feedback regarding any existing Service or any future service plan, including but not limited to improved or additional functionality or features (“Feedback”). Customer agrees that any Feedback shall be voluntarily given, that any and all Feedback will immediately and automatically become our property, and that we shall be entitled to incorporate any Feedback into any Service without any compensation or other liability or obligation of any nature or kind whatsoever to Customer.
Use of the Services
An individual authorized by Customer to access and use the Subscribed Service (an “Authorized User”) may manage certain content such as enter, collect, submit, store, process, display, delete, download, or export allowable data, files, and messages for Customer or be authorized for limited ‘read-only’ access. In addition, Customer may approve an entity or agency to join a Customer configurable program that is using a Subscribed Service for the purpose of submitting data to Customer via limited, no fee Re-TRAC Connect™ accounts for which they independently register (each, a “Reporting Entity”). For greater certainty, Reporting Entities are not considered Customer’s Authorized Users and are not parties to the Agreement.
All such data, files and messages so entered or submitted for Customer by Authorized Users or Reporting Entities are herein collectively referred to as “Customer Data”.
Customer Data is owned by Customer, and such ownership is highlighted in the User Terms that such an individual has to agree to in order to become an Authorized User and that such an entity or agency has to agree to in order to become a Reporting Entity. As a result, subject to our rights under the Agreement, Customer has control over Customer Data, and may manage Authorized Users’ permissions and exports of certain Customer Data and Reporting Entities’ permissions pertaining to Customer’s configurable program(s) as Customer sees fit. Customer also has sole responsibility for the legality, reliability, integrity, accuracy, and quality of any and all Customer Data.
Reports may be viewed online and may be exported by Customer to XLS or PDF. The Subscribed Service does not provide the functionality to save generated reports. Notwithstanding the inclusion of Customer Data in any such report, this website and the Subscribed Service and all software that we develop to provide the Subscribed Service (including any report templates generated by the software and the methodology that produces such reports) that is utilized by Customer to generate a report will be owned by Emerge Knowledge (with the sole exception of third party software that is licensed to Emerge Knowledge for us to use to deliver the Services).
If Customer chooses to create a public profile in the Subscribed Service, all information and other content which Customer chooses to include in that profile (including any personal information) will be visible to the public on the World Wide Web via a program-specific URL and at www.recyclesearch.com. You understand that the creation of a public profile is entirely optional and you are responsible for the information that you choose to submit. If such information and other content includes photos, trademarks, copyrighted material and/or any other intellectual property, Customer represents and warrants that it has obtained the required consents or other forms of permission to use and display such information/other content in this manner. Trademarks and servicemarks provided by Customer are the property of their respective owners.
Customer shall take all necessary steps to ensure Authorized Users maintain the confidentiality of account login credentials (the combination of account work email address and password is herein called “Login Credentials”) and shall be solely responsible for all activities that occur using the Login Credentials and corresponding accounts issued to Authorized Users. Customer shall promptly notify us of any unauthorized use of any Login Credentials or breach of security of which Customer becomes aware.
Subject to our rights under the Agreement and the User Terms, Customer is responsible for authorizing permission, suspension, or termination of an Authorized User’s access to the Subscribed Service and a Reporting Entity’s access to Customer’s program in the Subscribed Service. In particular, Customer will: (a) inform all Authorized Users and all Reporting Entities of Customer policies and/or authority that is relevant to Customer’s use of the Subscribed Service and the processing of Customer Data (for example, Customer’s statutory authority to collect specific program data); and (b) obtain all rights, permissions or consents from each Authorized User and from each Reporting Entity that are necessary for the lawful use and transmission across any jurisdiction boundary(s) of Customer Data within the Subscribed Service and that are not already included in the User Terms.
Notwithstanding any other provision of the Agreement, Customer must comply with the Agreement and all applicable laws in accessing and using the Subscribed Service. Customer must also ensure that all of its Authorized Users and all of its Reporting Entities comply with the Agreement, the User Terms, and all applicable laws. We aren't responsible in any manner whatsoever for the content of the Customer Data or the way in which Customer, any Authorized User, or any Reporting Entity chooses to use the Subscribed Service such as to enter, collect, submit, store, process, display, delete, download or export Customer Data.
Customer is solely responsible for providing high speed internet service and modern browsers that successfully display a web application using the latest web standards for its Authorized Users, and for advising its Reporting Entities to visit our website for the purpose of reviewing and complying with the minimum web browser requirements that we recommend in this regard, to access and use the Subscribed Services.
Our Removal Rights
We may review any access and use of the Subscribed Service as we consider appropriate for compliance purposes and, if we believe that there is a violation of the Agreement that can simply be remedied by Customer’s removal of certain Customer Data and/or by Customer speaking to an Authorized User or Reporting Entity regarding any non-compliance, we will, in most cases, ask Customer to take direct action rather than intervene. However, we may directly take what we determine to be appropriate action including, but not limited to, removal of Customer Data and/or temporary suspension or deletion of an Authorized User’s or Reporting Entity’s Login Credentials if Customer does not take appropriate action within the time period requested by us or if we believe there is a credible risk of harm to us, any of the Services, any Authorized User, any Reporting Entity, or any third party(s). Thereafter, Customer’s failure to cooperate with us in resolving the identified non-compliance may result in us terminating the Agreement For Cause (as hereinafter defined).
Links to Third Party Websites
Links to third party websites found in the Services are provided merely as a convenience and do not imply endorsement by us of the linked or referenced sites or their content in any manner whatsoever. We are not responsible for the accuracy, reliability, or currency of the information or services provided on any linked site or by any external source. Customer’s use of any linked site is at your own risk and is subject to the terms and conditions established by and applicable to each such site.
Fees are specified in the applicable Order Form, and the preferred method of payment is by check/cheque (we can accept check/cheque payment only from U.S. and Canadian Customers). Customers will be invoiced by email, and full payment must be received by us within thirty (30) days from the date Customer receives the invoice unless otherwise specified in the applicable Order Form. If we have not received payment of the full invoiced amount by the specified due date, and without limiting our other rights and remedies, the unpaid amount will accrue late interest at a rate of 1.5% of the outstanding balance per month (calculated from due date), or the maximum rate permitted by law, whichever is lower. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, goods and service, sales, use or withholding taxes, assessable by any jurisdiction (collectively, “Taxes”). Customer will be responsible for paying all Taxes associated with its subscription, except for taxes based on our net income.
All references herein to fees or other charges are in the currency specified in the applicable Order Form and all payments shall be made in the specified currency.
Suspension or Termination for Non-Payment
If any fees owed to us by Customer (excluding amounts disputed reasonably and in good faith) are overdue, a written notice of overdue payment will be sent to Customer’s designated contact, as specified in the Order Form (the “Initial Notice”). If Customer does not make payment of the overdue amount within thirty (30) days of receiving this notice, and without limiting our other rights and remedies, we may suspend access to and use of the related Subscribed Service until the overdue amount, together with accrued interest, is paid in full. If Customer does not make payment of the overdue amount, together with accrued interest, within sixty (60) days of receiving the notice, and without limiting our other rights and remedies, we may terminate the Agreement, effective immediately on notice to Customer.
Customer acknowledges and agrees that a suspension of a Subscribed Service will result in a temporary loss of access to Customer’s (as well as its Authorized Users’ and/or Reporting Entities’) use of that Subscribed Service including loss of access to Customer Data that relates to that Subscribed Service. In the event of termination of the Agreement for Customer’s failure to pay all undisputed amounts due to us, Customer will be given access to the Subscribed Service to retrieve its Customer Data, but only after the overdue amount, together with accrued interest, is paid in full; provided, however, that we are not under any obligation to retain Customer Data for more than 100 days from the date of the Initial Notice.
We value our Customers and are committed to:
Keeping the Services Available
We will use commercially reasonable efforts to achieve Subscribed Service Availability of at least ninety-nine percent (99%) for each calendar month during the Subscription Term.
“Subscribed Service Availability” means the average percentage of total time during which the Subscribed Service is available to Customer’s Authorized Users and Reporting Entities during a calendar month, excluding: (i) any scheduled maintenance windows on our part or on the part of our third party hosting service; (ii) any unplanned downtime to deal with emergency situations on our part or on the part of our third party hosting service; (iii) any outages resulting from Customer’s (or any Authorized User’s or Reporting Entity’s) network, equipment, and systems; (iv) any inaccessibility due to Customer’s requests or where Customer approved the same in advance; (v) Customer’s negligence or breach of its material obligations under the Agreement (or any negligence or breach by any of its Authorized Users and Reporting Entities of their material obligations under the User Terms); and (vi) any excusable delays due to a Force Majeure Event (as hereinafter defined).
Scheduled Maintenance and Updates
Software maintenance including updates and patches is generally scheduled once a month and performed after business hours. We will endeavor to provide two (2) hour advance notice of scheduled maintenance and updates to Authorized Users via an on screen timer in the Subscribed Service. On occasion, we also perform system maintenance and patching during regular business hours. Planned scheduled maintenance and updates will not be considered times when the software is unavailable. In addition, functionality may be altered from time to time (at our discretion) as the Subscribed Service is updated for performance enhancements or the adoption of new standards.
Incident Classification and Response
We will classify and respond to incidents by considering the underlying problem’s effect on Customer’s Authorized Users and/or Reporting Entities. We may classify an underlying problem as “routine”, “urgent” or “critical”. Our guidelines for determining the severity of a problem, and the appropriate classification of and our maintenance response to it, are described below. We will apply these classifications in good faith, and we will give due consideration to any request by an affected Authorized User or Reporting Entity to reclassify a problem.
|Routine||We will classify an incident as “routine” if the problem does not materially restrict use of the Subscribed Service, such as when a feature or combination of features generates minor errors. We will respond to routine problems by implementing a fix or workaround on a priority basis if the problem is one for which an existing patch or workaround already exists. For newly identified problems falling into this classification (and for which an existing workaround does not already exist), our support personnel will generate a problem report, and the appropriate development or support personnel will then prioritize resolution of the problem in relation to other outstanding product issues. The assigned priority will govern the problem solving or developmental work needed to address the problem and the schedule for delivering a resolution.|
|Urgent||We will classify a problem as “urgent” if (i) there is significant degradation in the performance of the Subscribed Service or a major function or component thereof; or (ii) a commonly used feature of the Subscribed Service often generates errors, causes use of the Subscribed Service to freeze, or otherwise routinely does not work as intended. Classification of a problem as urgent rather than critical assumes that Customer’s Authorized Users and/or Reporting Entities can still access and make some use of the Subscribed Service. Urgent classification assumes there is likely an existing patch or acceptable workaround procedure for the problem. We will respond to urgent problems by arranging for our product development and support personnel to work collaboratively to implement a fix or a workaround, and to implement that fix or workaround as soon as reasonably possible. At the request of the affected Customer, our support personnel will maintain regular contact with that Customer to keep that Customer aware of progress toward a resolution of the problem.|
|Critical||We will classify a problem as “critical” if the Subscribed Service is functionally inoperable. This classification assumes there is no existing patch or workaround procedure for the problem. We will respond to critical problems by making appropriate managerial personnel aware of the problem for the purposes of actively tracking and facilitating an expeditious resolution. We will assign product development and support personnel to the problem, and those personnel will prepare a work plan for the problem’s expeditious resolution. The work plan will assume that our appropriate staff will work until the Subscribed Service is again functionally operable. Our support personnel will maintain daily contact with Customer to keep Customer aware of efforts being made to solve the problem.|
|Severity:||No hindrance to Customer’s work; a work around is available or to be scheduled.||Interruption to Customer’s work; a work around is likely available.||Interruption to Customer’s work due to functional inoperability of the Subscribed Service; no work around is available|
|Urgency:||Immediate resolution is not needed by Customer.||Immediate resolution is not needed by Customer.||Immediate resolution is needed by Customer.|
|First response time target:||Same business day upon becoming aware of the routine issue.||Same business day upon becoming aware of the urgent issue.||Within one (1) hour of becoming aware of the critical issue.|
|Resolution time target:||1 to 4 weeks
(a release cycle)
|2 to 5 working days
(a patch or current release cycle)
(priority until incident is resolved, priority hotfix)
Note: requests by Customer for training, customization, or changes to product configuration in the Subscribed Service will be escalated to one of our Solutions Managers, will constitute Professional Services, and will be managed as agreed to in an Order Form applicable thereto.
Authorized Users and Reporting Entities have access to an online technical support request form which can be used to request assistance to solve a specific problem experienced by an Authorized User or Reporting Entity in using a Subscribed Service and to receive such assistance via email reply (“Technical Support”). We will provide a response, and endeavor to resolve each technical support request, within two (2) business days (e.g. same day or next business day, so long as the request is received by us before noon, local time, in Winnipeg, Manitoba, Canada). Technical Support is available Monday to Friday from 9:00am to 5:00pm Central Standard Time (CST) and Central Daylight Time (CDT), not including holidays in the Province of Manitoba.
Holidays, when Technical Support is not available, include: New Year’s Day (January 1), Louis Riel Day (3rd Monday in February), Good Friday (Friday in April prior to Easter Sunday), Victoria Day (the Monday preceding May 25), Canada Day (July 1), August Civic Holiday (1st Monday in August), Labour Day (1st Monday in September), Thanksgiving Day (2nd Monday of October), Remembrance Day (November 11), Christmas Day and Boxing Day (December 25 and 26).
Requests for Technical Support that will require us to provide any service other than described above (such as requests for training or changes to product configuration), will be escalated at our discretion to one of our Solutions Managers, will constitute Professional Services, and will be managed as agreed to in Order Form.
Protecting Customer Data
The protection of Customer Data is a top priority for us so we will maintain administrative, physical, and technical safeguards at a level not materially less protective than as described on our Security Practices page (collectively, our “Security Practices”). The purpose of these safeguards is to prevent unauthorized access, use, modification, deletion and disclosure of Customer Data. Before sharing Customer Data with any third party service provider, we evaluate their administrative, physical, and technical safeguards to determine, to the best of our ability, that they are at least as protective as our Security Practices. Alternatively, we use third party service providers who we reasonably believe have administrative, physical, and technical safeguards that exceed ours. Notwithstanding the foregoing, Customer (not us) bears sole responsibility for adequate security, protection and backup of Customer Data when in Customer’s or any of its Authorized User’s possession or control or when Customer or any of its Authorized Users or Reporting Entities chooses to use unencrypted gateways to connect to the Subscribed Service. We are also not responsible for what Customer or any of its Authorized Users do with Customer Data.
The Re-TRAC Connect Team
We may leverage our directors, officers, and employees (collectively, the “Re-TRAC Connect Team”) in exercising our rights and performing our obligations under the Agreement. We will be responsible for the Re-TRAC Connect Team’s compliance with our obligations under the Agreement.
Ownership and Proprietary Rights
What’s Yours is Yours
Customer will own all Customer Data. During the Subscription Term, Customer’s Authorized Users may retrieve certain Customer Data stored in the Subscribed Service using the standard retrieval mechanisms available to Customer in the Subscribed Service; specifically, survey response data may be downloaded and exported to XLS, CSV, and PDF, user contact information may be downloaded and exported to XLS, directory listings may be downloaded and exported to XLS, material transaction data may be downloaded and exported to XLS, and Customer files may be downloaded in the format in which they were uploaded in the Subscribed Service. Messages sent and/or received by Customer Authorized User within the Subscribed Services cannot be retrieved (downloaded and/or exported) from the Subscribed Service; however, a copy of each message sent by an Authorized User in the Message Center in the Subscribed Services is sent to the account work email address of the Authorized User.
Subject to the terms and conditions of the Agreement, Customer (for itself and all of its Authorized Users and Reporting Entities) grants us and the Re-TRAC Connect Team a worldwide, non-exclusive license to access, use, modify, delete, process, host, copy, export, display, and disclose Customer Data only as reasonably necessary:
(a) to provide, maintain, and improve the Subscribed Service; (b) to prevent or address service, security, support or technical issues; (c) as required by law; or (d) to generate aggregate information from and about the Subscribed Service through the combination and compilation of Customer Data from multiple Customers, provided that the information is aggregated and/or de-identified so that it is no longer associated with an identifiable Customer of the Subscribed Service (collectively, “Aggregated Data”), and to use such Aggregated Data for statistical analysis, benchmarking, and other business or research purposes and/or to make such Aggregated Data (unanalyzed or analyzed) available to all Customers of the Subscribed Service, or to any third part(y)s; and (e) as otherwise expressly permitted in writing by Customer. Customer represents and warrants that it has secured all rights in and to Customer Data from its Authorized Users and Reporting Entities as may be necessary to grant this license, and that none of the Customer Data constitutes confidential information.
Trademarks and servicemarks provided by Customer are the property of their respective owners.
What’s Ours is Ours
We own and will continue to own this website and the Services and we own and will continue to own (or are and will continue to be an authorized licensee) of all software that we utilize to provide the Services (including any report templates generated by the software and the methodology that produces such reports), together with all modifications, enhancements, and updates to this website, the Services and/or to such software, as well as all related documentation, and any and all copyrights, patent rights, trademarks (whether registered or unregistered), trade secrets or other intellectual property rights of any nature or kind whatsoever therein or thereto that are not owned by a third party licensor of any such software, documentation or intellectual property right (collectively, “Our Intellectual Property”). Without limiting the generality of the foregoing, the content, organization, graphics, design, compilation, digital conversion and other matters related to this website, the Services, to such software and/or to such documentation are protected under applicable copyrights, trademarks, and other intellectual property rights, which are owned by us or any such third party licensor. The copying, redistribution, use, or publication by you of any such matters, except as expressly allowed by these Customer Terms, is strictly prohibited. Any and all of our rights not expressly granted by the Agreement to Customer are hereby retained by Emerge Knowledge.
Trademarks and servicemarks that appear on this website and/or in the Services that are not owned by Emerge Knowledge are the property of their respective owners.
Term and Termination
As described above under the “Ordering Subscriptions” section, each subscription to the Services has a Subscription Term that is established in the applicable Order Form. The Agreement remains effective between us and each Customer until all Subscription Terms for that Customer have expired or been terminated (as explained below) or the Agreement itself terminates in accordance with these Customer Terms, whichever is earlier. Any such termination of the Agreement will automatically terminate all subscriptions providing Customer (and its Authorized Users and Reporting Entities) with access to use any of the Services. Rights and remedies related to Term and Termination are cumulative and in addition to any other right or remedy available under the Agreement, at law or in equity.
Unless an Order Form says something different: (a) all subscriptions automatically renew (without the need to execute a renewal Order Form or Purchase Order) for additional periods equal to one (1) year, as of each anniversary Subscription Term start date; and (b) the renewal term subscription pricing and Professional Service rates (as described in the Order Form) during any automatic renewal Subscription Term will be as specified, unless we give Customer notice of a change at least ninety (90) days before the end of the then current Subscription Term. Either party can give the other notice of non-renewal at least sixty (60) days before the end of a Subscription Term to stop a subscription for a Subscribed Service from automatically renewing.
Termination for Cause
Either we or Customer may terminate the Agreement on notice to the other party: (a) if the other party materially breaches the Agreement and such breach is not cured within sixty (60) days after the non-breaching party provides notice of the breach; or (b) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Customer is responsible for its Authorized Users , including for any breaches of the Agreement or of the User Terms by any of its Authorized Users. We may suspend access to any Subscribed Service or terminate the Agreement immediately on notice to Customer if we reasonably believe that any Subscribed Service is being used by Customer or any of its Authorized Users or Reporting Entities in violation of applicable law. For greater certainty, our rights pursuant to this paragraph to terminate the Agreement and/or to suspend access to any Subscribed Service are in addition to our right to do so pursuant to any other provision of these Customer Terms. For greater certainty, any termination of the Agreement by either Customer or us for any of the reasons described in this paragraph shall constitute termination “For Cause”.
Effect of Termination
Upon any termination of the Agreement by Customer For Cause, we will refund Customer any prepaid subscription fees covering the remainder of the Subscription Term after the effective date of termination and any prepaid Professional Services fees for services not performed prior to the effective date of termination. Upon any termination of the Agreement by us For Cause, Customer will forfeit any prepaid subscription fees to us (as liquidated damages), and will pay any unpaid subscription fees covering the remainder of the Subscription Term after the effective date of termination as well as all outstanding Professional Services fees for services performed prior to the effective date of termination. In no event will any termination of the Agreement relieve Customer of the obligation to pay any fees incurred and payable to us for the period prior to the effective date of termination.
Data Portability and Deletion
We are custodians of Customer Data. During the Subscription Term, Customer may retrieve Customer Data stored in the Subscribed Service (as described in the “What’s Yours is Yours” section above). Following termination or expiration of a Customer’s subscription(s), and except as otherwise expressly stated in the “Suspension or Termination for Non-Payment” section, we will have no obligation to maintain or provide any Customer Data to Customer or to any of its Authorized Users or its Reporting Entity Users, and we may thereafter, unless legally prohibited, delete all Customer Data in our systems or otherwise in our possession or under our control, unless otherwise expressly agreed to by us in the applicable Order Form.
Representations; Disclaimer of Warranties
Customer represents and warrants that it has validly entered into the Agreement and that it has the legal power to do so. Customer further represents and warrants that it will be responsible, and agrees that it is responsible, for the conduct of its Authorized Users and Reporting Entities and their compliance with the terms of the Agreement and the User Terms.
CUSTOMER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED FOR IN THESE CUSTOMER TERMS, THE SERVICES AND ALL RELATED INFRASTRUCTURE AND INFORMATION ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, AND THAT WE EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION TITLE, NON-INFRINGEMENT AND THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MECHANTABLE QUALITY AND FITNESS FOR A PARTICULAR PURPOSE. IN PARTICULAR, CUSTOMER FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONALITY CONTAINED IN ANY SUBSCRIBED SERVICE WILL SATISFY ALL OF CUSTOMER’S REQUIREMENTS, THAT THE QUALITY OF ANY SUBSCRIBED SERVICE WILL MEET YOUR EXPECTATIONS, OR THAT ANY SUBSCRIBED SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE.
WE SHALL IN NO EVENT BE RESPONSIBLE FOR THE RECONSTRUCTION OF ANY CORRUPTED OR LOST CUSTOMER DATA THAT IS CORRUPTED OR LOST AS A RESULT OF ANY ACT OR OMISSION ON THE PART OF CUSTOMER OR ANY OF ITS AUTHORIZED USERS OR REPORTING ENTITIES.
Limitation of Liability
OTHER THAN IN CONNECTION WITH OUR INDEMNIFICATION OBLIGATIONS HEREUNDER, REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT UNDER THE AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY), IN NO EVENT WILL THE AGGREGATE LIABILITY OF EMERGE KNOWLEDGE AND THE RE-TRAC CONNECT TEAM ARISING OUT OF OR RELATED TO THE AGREEMENT AND/OR THE USER TERMS EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE LAST EVENT GIVING RISE TO LIABILITY FOR THE SUBSCRIBED SERVICE IN QUESTION. FOR GREATER CERTAINTY THE FOREGOING WILL NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER THE “PAYMENT TERMS” SECTION ABOVE.
ALSO REGARDLESS OF CIRCUMSTANCES AND REGARDLESS OF THE FORM OF ACTION (WHETHER IN CONTRACT UNDER THE AGREEMENT OR IN TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY), NEITHER EMERGE KNOWLEDGE NOR ANY MEMBER OF THE RE-TRAC CONNECT TEAM WILL BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, EXEMPLARY OR AGGRAVATED LOSSES OR DAMAGES OF ANY NATURE OR KIND WHATSOEVER, HOWEVER CAUSED, ARISING OUT OF OR RELATED TO CUSTOMER’S (OR ANY OF ITS AUTHORIZED USER’S OR REPORTING ENTITY’S) USE OF, DELAY IN USING OR INABILITY TO USE ANY SUBSCRIBED SERVICE AND/OR ANY LINKED WEBSITE AND/OR PRODUCTS AND/OR SERVICES, OR FOR ANY CLAIM OR DEMAND AGAINST CUSTOMER (OR ANY OF ITS AUTHORIZED USERS OR REPORTING ENTITIES) BY ANY THIRD PARTY, EVEN IF EMERGE KNOWLEDGE AND/OR ANY MEMBER OF THE RE-TRAC CONNECT TEAM MAY HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR IF SUCH LOSSES OR DAMAGES WERE REASONABLY FORSEEABLE.
THE FOREGOING LIMITATIONS OF LIABILITY ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE AGREEMENT BETWEEN US AND YOU. IN PARTICULAR, THESE LIMITATIONS ALLOCATE THE RISKS UNDER THE AGREEMENT BETWEEN US AND YOU, WE HAVE RELIED ON THESE LIMITATIONS IN PRICING THE SERVICES, AND THE SERVICES WOULD NOT BE PROVIDED AT SUCH PRICING IN THE ABSENCE OF SUCH LIMITATIONS.
Customer is responsible for all Login Credentials, and all activities that occur using the Login Credentials and corresponding accounts, for all of Customer’s Authorized Users. We will not be responsible for any losses, damages or liability to Customer, any Authorized User, or any third party, if such information is not kept confidential by Customer or any Authorized User.
Our Indemnification of Customer
We will indemnify and save Customer harmless from and against any and all damages finally awarded against Customer (or the amount of any settlement we enter into on Customer’s behalf), in connection with a suit or proceeding brought against Customer by a third party that alleges that the use of the Subscribed Service by Customer as permitted under the Agreement constitutes a direct infringement of or misappropriation of a third party’s copyright, provided that: (a) the infringement is admitted by us or is proven in court; and (b) the infringement or misappropriation is not attributable to: (i) any Customer Data; (ii) any modification, combination, or development of the Subscribed Service that is not performed by us, including in the use of any application programming interface (API); (iii) any use of the Subscribed Service in conjunction with any other software or service; or (iv) any breach of the Agreement by Customer or by any of its Authorized Users or Reporting Entities. In order to be eligible for such indemnification, Customer must provide us with prompt written notice of any infringement or misappropriation allegations related to the Subscribed Service and allow us the right to assume the exclusive defense and control of that allegation, suit or proceeding, and Customer must cooperate in a timely manner with any reasonable requests that we may make of Customer to assist with our defense and settlement of such matter. We may, in our sole discretion and at no cost to Customer, modify the Subscribed Service so that the Subscribed Service no longer infringes or misappropriates, so long as such modified Subscribed Service provides substantially the same functionality as the unmodified Subscribed Service, or, if such remedy is not reasonably available, we may terminate the Agreement upon thirty (30) days’ written notice to Customer and refund Customer any prepaid Subscribed Service subscription fees covering the remainder of the period after the effective date of termination in the then current Subscription Term. For greater certainty, this section states our sole liability with respect to, and Customer’s exclusive remedy against us and any member of the Re-TRAC Connect Team for, any claim against Customer alleging infringement or misappropriation of any third party intellectual property rights.
Customer’s Indemnification of Us
Customer will indemnify and save Emerge Knowledge and the members of the Re-TRAC Connect Team (collectively, the “Emerge Knowledge Indemnified Parties”) harmless from and against any and all claims, damages, losses, liabilities, demands, judgments, causes of action, suits, legal proceedings, penalties or other sanctions and any and all costs and expenses arising in connection therewith (including reasonable legal fees and disbursements) that may, directly or indirectly, result from, arise out of, or be attributable to: (a) any breach or violation by Customer, by any of Customer’s Authorized Users or by any of Customer’s Reporting Entities of the Agreement or the User Terms; (b) any use of the Subscribed Service by Customer, by any of Customer’s Authorized Users or by any of Customer’s Reporting Entities; or (c) any inability to use the Subscribed Service by Customer, by any of Customer’s Authorized Users or by any of Customer’s Reporting Entities. In order to be eligible for such indemnification, we must provide Customer with prompt written notice of any such claim, demand, cause of action, suit or legal proceeding and allow Customer the right to assume the exclusive defense and control thereof, and we must cooperate in a timely manner with any reasonable requests that Customer may make of us to assist with Customer’s defense and settlement of such matter.
Limitations on Indemnifications
Notwithstanding anything contained in the two preceding sections: (a) an indemnified party will always be free to choose its own counsel to participate in the defence of any claim, demand, cause of action, suit or legal proceeding if it pays for the cost of such counsel; and (b) no settlement may be entered into by an indemnifying party, without the express written consent of the indemnified party(s) (such consent not to be unreasonably withheld or delayed), if (i) the third party asserting the claim, demand, cause of action, suit or legal proceeding is a government agency, (ii) the settlement arguably involves the making of admissions by the indemnified party(s), (iii) the settlement does not include a full release of liability for the indemnified party(s), or (iv) the settlement includes terms other than a full release of liability for the indemnified party(s) and the payment of money.
Customer grants us the right to display Customer’s name and logo as a Customer on our website and in other public or private communications with our existing or potential Customers, subject to Customer’s standard trademark usage guidelines as provided to us from time-to-time. Any Customer who does not wish to be so listed and displayed must expressly state this on the Order Form.
Neither us nor Customer will be liable by reason of any failure or delay in the performance of its obligations under the Agreement which is attributable to any event that is beyond the reasonable control of that party (a “Force Majeure Event”), which may include denial-of-service attacks, a failure by a third party hosting provider or utility provider, strikes, shortages, riots, fires, floods, accidents, explosions, pandemic flu, acts of God, war, terrorism, governmental action or inaction, or requests by governmental authorities. As soon as feasible, the party suffering the Force Majeure Event shall notify the other party of the details of the event and probable duration. Upon the other party’s receipt of such notice, representatives of the parties shall communicate to establish plans and procedures to overcome or mitigate the effects of the Force Majeure Event, and the party suffering the Force Majeure Event shall use all reasonable efforts to minimize any adverse effects on the other party. For greater certainty, a Force Majeure Event shall not relieve either party from its payment obligations under the Agreement.
Relationship of the Parties; No Third Party Beneficiaries
The parties are independent contractors. The Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, employment, co-ownership, or licensor/licensee relationship (except the licensor(Customer)/licensee(Emerge Knowledge) relationship described under the heading ‘What’s Yours is Yours’), or otherwise a joint or common undertaking between the parties. Except as expressly set forth in these Customer Terms, nothing contained in the Agreement is intended to confer upon any person not a party hereto any rights, benefits or remedies of any kind or character whatsoever, and no such person shall be deemed a third-party beneficiary under the Agreement.
All notices to Customer pursuant to the Agreement will be sent in writing to the work email address specified by Customer for receiving notices in the Order Form. All notices to us pursuant to the Agreement will be sent in writing to email@example.com. Notices will be deemed to have been duly given (a) the day after it is sent in the case of notices through email (so long as that ‘day after’ is a business day of the party receiving that notice), so long as the party sending the notice does not receive a response that the message was not received by the intended party; and (b) the same day in the case of notices through the Subscribed Service.
Modifications and Waiver
As our business evolves, we may change these Customer Terms and/or other components of the Agreement (except any valid Order Forms, which may only be modified as described in the next paragraph). While we are not obligated to do so, if we wish to make a material change to the Agreement, we may provide Customer with what we consider to be reasonable notice prior to the change taking effect by emailing the work email address specified by Customer for receiving notices in the Order Form. Customer can review the most current version of these Customer Terms (appropriately date stamped), as well as the most current versions of the other documents that are referenced in these Customer Terms (which will also be appropriately date stamped), at any time by visiting this website. The materially changed Agreement will become effective on the date set forth in our notice (should we issue any notice in respect of that change), and all other changes will become effective upon posting of the change on this website. If Customer (or any Authorized User) accesses or uses the Services after any such effective date, that use will constitute Customer’s acceptance of any revised terms and conditions.
No modification of any provision in any valid Order Form will be effective unless made in writing and signed by an authorized representative of the party(s) to be bound by that modification.
No failure or delay by either party in exercising any right under the Agreement or enforcing any provision of the Agreement will constitute a waiver of that right or of the ability to fully enforce that provision.
The headings contained in these Customer Terms are for convenience of reference only and shall not affect the interpretation of these Customer Terms. The Agreement shall be read with all changes in gender and number required by the context, and any reference to “year” in the Agreement shall mean a twelve (12) month period. The language in the Agreement shall be interpreted as to its fair meaning and not strictly for or against any party.
The Agreement will be enforced to the fullest extent permitted under applicable law. If any provision of the Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, that provision will be severed from the rest of the Agreement, and the remaining provisions of the Agreement shall remain in full force and effect.
Neither party may assign or delegate any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld or delayed); provided that, without your consent: (a) we may delegate any of our rights or obligations hereunder to any person within the Re-TRAC Connect Team (it being understood and agreed that we are responsible for that person’s exercise of that right or performance of that obligation); and (b) we may assign the Agreement to a corporate affiliate in connection with a corporate reorganization or to any third party with whom we deal at arms’ length who acquires all or substantially all of the assets of Emerge Knowledge that are required to provide the Subscribed Service. Subject to the foregoing, the Agreement will bind and enure to the benefit of the parties, together with their respective successors and permitted assigns.
The Agreement, and any disputes arising out of or related to the Agreement, will be governed exclusively by the laws of the following jurisdiction (which depends on where Customer is domiciled). Subject to the section under the heading ‘Dispute Resolution’, the courts of each such jurisdiction will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to the Agreement or its formation, interpretation or enforcement. Each party hereby consents and submits to the exclusive jurisdiction of such courts. Notwithstanding the foregoing, each party hereby agrees that any injunctive or other equitable relief can be sought by either party in any court of competent jurisdiction. The parties hereby expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods.
|Domicile of Customer||Governing Law||Venue|
|Anywhere in Canada||Province of Manitoba and the federal laws of Canada applicable therein||City of Winnipeg|
|Anywhere in the United States||State of New York||City of New York|
|Anywhere other location in the World||Province of Manitoba and the federal laws of Canada applicable therein||City of Winnipeg|
Waiver of Jury Trial
EACH PARTY HEREBY WAIVES, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE AGREEMENT OR ANY OF THE SERVICES CONTEMPLATED BY THE AGREEMENT (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).
The parties will first attempt to resolve any claim, dispute, or controversy (whether in contract, tort or otherwise) arising out of or relating to the Agreement (a “Dispute”) through direct negotiation with persons authorized to resolve the Dispute or through mediation utilizing a mutually agreeable mediator. Notwithstanding the foregoing, either party will have the right to seek from a court of competent jurisdiction a preliminary and/or permanent injunction or other equitable relief to preserve the status quo or prevent irreparable harm, although the merits of the underlying Dispute will still be resolved in accordance with this section. If the parties choose to mediate, all reasonable efforts will be made to complete the mediation within sixty (60) days of notice of the Dispute being given by one party to the other party. In the event the parties are unable to resolve the Dispute within such period of time, by direct negotiation and/or mediation, either party may seek resolution through binding arbitration before a single arbitrator in accordance with the arbitration legislation in the jurisdiction referred to in the previous section under the heading ‘Governing Law’. If either party initiates such arbitration proceedings, all reasonable efforts will be made to complete the arbitration within ninety (90) days of notice of the initiation of arbitration proceedings being given by one party to the other party. The decision of the arbitrator shall be final and binding on both parties.
For greater certainty, no Dispute: a) alleging the commission of a tort may be initiated by either party more than one (1) year after the date on which the claimant first knew, or ought to have known, of all material facts of a decisive character upon which the action is based; or b) alleging breach of contract or any other breach of duty other than a duty owed in tort may be initiated by either party more than one (1) year after the cause of action arose; except that in any case a Dispute alleging non-payment of monies owing under the Agreement may be initiated within one (1) year after the date of last payment.
The existence of any Dispute, as well as any such negotiations/mediation/arbitration or results of any such negotiation or mediation will be treated as confidential.
Entire Agreement and Order of Precedence
The Agreement, including these Customer Terms, the Order Form, the Customer-Specific Schedule (if applicable) and any other documents incorporated into the Agreement by reference in these Customer Terms, constitutes the entire agreement between the parties with respect to the Subscribed Service and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning the Subscribed Service. In the event and to the extent of any conflict or inconsistency between the provisions in these Customer Terms and any other documents or pages referenced in these Customer Terms, the following order of precedence will apply: (1) the terms of the Order Form, (2) the portions of the Customer-Specific Schedule that apply to Customer (if any), (3) these Customer Terms, and (4) finally, any other documents or pages referenced in these Customer Terms. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer Purchase Order (with the sole exception of the terms and conditions contemplated in a Purchase Order that complies with the provisions of the paragraph under the heading ‘Legally Binding Agreement’), vendor onboarding process or web portal, or any other Customer order documentation (excluding the Order Form) will be incorporated into or form any part of the Agreement, and all such terms or conditions will be null and void.
The parties acknowledge and agree that they have required that all of the documents that form part of the Agreement be prepared in the English language.
Contacting Emerge Knowledge
Please contact us if you have any questions about these Customer Terms at firstname.lastname@example.org or at our mailing address:
EMERGE KNOWLEDGE DESIGN INC.
401 – 250 MCDERMOT AVENUE
WINNIPEG, MANITOBA R3B 0S5