Last updated on Oct 01, 2022
This Agreement is entered into by and between (website www.Casolve.com, herein referred to as “Casolve”) and the client (“Subscriber”) who acquired the Casolve Services (collectively, the “Parties”), as specified in one or more Quote/Invoice/Sales Order/Casolve’s Billing pages that incorporate this Agreement by reference.
If Subscriber is a natural person, Subscriber affirms that it is at least 18 years old or has reached the age of legal majority in the Subscriber’s jurisdiction of residence; if Subscriber is a legal entity, Subscriber affirms that the natural person entering into this Agreement on behalf of such legal entity possesses the requisite authority to do so. Subscriber additionally represents that it is not a Casolve rival and does not directly or indirectly represent a Casolve competitor.
- “Agreement” refers to this Subscription Agreement along with all Quote/Invoice/Sales Order/Casolve’s Billing pages and other documents and agreements referenced or incorporated by hyperlink or other references therein.
- “Authorized User” refers to a person authorized by Subscriber and Casolve to access the Casolve Services, such as Subscriber’s employees, agents, and third parties with whom Subscriber does business.
- “Confidential Information” refers to any oral, written, electronic, or other form or medium of information that, given the nature of the information or the circumstances surrounding its disclosure, may reasonably be expected to be confidential. Confidential Information includes, but is not limited to, information relating to a party’s software or hardware, computer programs, source code, API data files, documentation, specifications, databases, system design, and development methods, as well as information relating to the party’s past, present, and future business, financial, commercial, and marketing information and plans, trade secrets, intellectual property, ideas, inventions, discoveries, processes, know-how, financials and financial forecasts and projections, product plans, designs, technical data and information, formulae, analyses, products, equipment, product road maps, prototypes, samples, designs, data sheets, schematics, configurations, specifications, techniques, draws, customer lists, business processes, and any other data or information disclosed, whether orally, visually, or in writing. Casolve regards the source and object code, processes, algorithms, methods, and related know-how and residual knowledge developed, created, or used by Casolve or its agents in connection with the performance of the Casolve Service, including, but not limited to, any software products, processing platforms or other tools named in the Quote/Invoice/Sales Order/Casolve’s Billing page, and any documentation relating thereto, including any modifications, enhancements, new versions or derivative works, as its proprietary information. Confidential Information does not include data or information that (I) is or becomes part of the public domain without breach of any obligation of confidentiality, as evidenced by the Receiving Party’s written records; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without any obligation of confidentiality, as evidenced by the Receiving Party’s written records; or (iii) is received from a third party without any obligation of confidentiality. (iv) is disclosed after written approval of the Disclosing Party, or (v) was independently developed by the Receiving Party without recourse or use of the Confidential Information disclosed under this Agreement as demonstrated by written records.
- The term “Disclosing Party” refers to the party that discloses Confidential Information to the Receiving Party.
- “Data” means any Personal Data (as defined in this Agreement) and all of Subscriber’s and Subscriber’s Authorized User’s data and information, in any form or media, (I) submitted to Casolve by Subscriber or Subscriber’s Authorized User or on Subscriber’s or Subscriber’s Authorized Users’ behalf (including within the Uploaded Data Files), (ii) generated by the Casolve Services specifically in response to such data and information, or (iii) captured by the Casolve Service regarding data or information supplied by Subscriber or Subscriber’s Authorized Users.
- “Documentation” refers to the Casolve Service-related installation guides, manuals, and other documentation made accessible to Subscriber by Casolve.
- “Casolve End User Terms of Service” refers to the terms of service made available by Casolve at www.Casolve.com/terms-of-service that Authorized Users of the Casolve Service must agree to in order to have access to the Casolve Service, as modified from time to time.
- “Casolve Service(s)” refers to the online products and/or services ordered by Subscriber under Quote/Invoice/Sales Order/Casolve’s Billing pages and made available to Subscriber by Casolve on a software-as-a-service basis via www.Casolve.com, and/or such other web pages designated by Casolve, as well as the offline components described in the Documentation.
- “Intellectual Property Rights” refers to, on a global scale, any and all rights, titles, and interests in or relating to intellectual property, including (I) all rights associated with works of authorship and literary property, including copyrights and moral rights of any author, software, website content, databases, data collections, and rights therein; (ii) all trademarks, service marks, logos, trade dress, trade names (whether OR NOT registered), and the goodwill associated with them; (iii) all rights relating to know-how or trade secrets; (iv) all patents, designs, algorithms, and other industrial proprietary rights; and (v) any other intellectual or industrial property rights, whether now or hereafter existing, and whether or not protected, filed, registered or recorded.
- The term “Receiving Party” refers to the party that receives Confidential Information from the Disclosing Party.
- “Quote/Invoice/Sales Order/Casolve’s Billing page” refers to the ordering paperwork for the Subscriber’s purchases of any subscription or Services from Casolve, which may include the number of Authorized Users permitted to use a Service under the Subscriber’s subscription.
- “Term” refers to the appropriate subscription term specified on the Quote/Invoice/Sales Order/Casolve’s Billing page.
- “Uploaded Data Files” refers to any data files that have been uploaded to the Casolve Service for processing by the Subscriber or an Authorized User.
B. Use of the Casolve Service
- Grant for Subscription. Casolve hereby grants Subscriber a limited, non-exclusive, revocable, non-assignable, non-transferable, non-sublicensable right to permit Subscriber’s Authorized Users to (a) access and use the Casolve Services; and (b) use the Documentation in support of such Authorized Users’ permitted use of the Casolve Services, in each case solely for Subscriber’s internal business use. This right is subject to the terms and conditions of this Agreement. The number of licenses or rights to use the Casolve Services identified in the applicable Quote/Invoice/Sales Order/Casolve’s Billing page (each a “Casolve License”) represents the number of licenses or Casolve Services for which the Subscriber agrees to pay for the Term; Subscriber may delegate one (1) Authorized User per Casolve License (as further detailed in Sections below).
- Subscription. Subscriber acknowledges that Subscriber’s and Subscriber’s Authorized Users’ use of the Casolve Service is subject to and limited by the terms of this Agreement, and that Subscriber’s Authorized Users’ right to access and use the Casolve Service is subject to their compliance with the Casolve End User Terms of Service. No additional rights are granted herein. Subscriber agrees that Subscriber shall be solely responsible for any breaches of this Agreement by any Authorized Users to whom Subscriber provides access to the Casolve Service. In the event Casolve reasonably believes that Casolve Licenses to the Casolve Services are being shared or otherwise used by more than one Authorized User per Casolve License, Casolve will require Subscriber to purchase additional Casolve Licenses, in excess of what is specified in the applicable Quote/Invoice/Sales Order/Casolve’s Billing page.
- Limitations on subscriptions. The subscriber acknowledges that the following limitations apply to their ability to use and access the Casolve Services:
- None other than Authorized Users may access any portion of the Casolve Services or the Subscriber’s login information;
- Except as specifically authorized by applicable law, Subscriber may not seek to reverse engineer, decompile, disassemble, or otherwise uncover any source code, algorithms, processes, or techniques inherent in the Casolve Service;
- The Casolve Service or any associated user interfaces may not be altered, translated, transferred, assigned, pledged, rented, leased, loaned, sold, resold, or used as the basis for any derivative works by the Subscriber;
- The Casolve Services, its associated systems or networks, or any proprietary or secret Uploaded Data Files, may not be accessed, uploaded, distributed, or made available for distribution by the Subscriber unless the Subscriber has the necessary rights and authority;
- In relation to Casolve Services, the Subscriber is not permitted to enter into any OEM, SaaS (or service bureau), time-sharing, outsourcing, application service provider, reseller, or other distribution agreements;
- By hiding, altering, removing, or otherwise changing any Casolve proprietary markings or legends placed upon or contained within the Casolve Services or any related materials, Subscriber may not imply that the Casolve Service was created, owned by, or proprietary to Subscriber or any other third party;
- It is forbidden for subscribers to use the Casolve Service or add code or other components to the Casolve Service in a way that compromises the functionality of Casolve’s servers or other systems;
- The Casolve Service may not be used by the Subscriber to upload, generate, access, display, alter, store, or distribute any Data that violates the rights of another party’s privacy or intellectual property;
- In order to (I) create a product or service that is competitive, or (ii) replicate any features, functionalities, or visuals of the Casolve Services, the Subscriber is not permitted to utilize or access the Casolve Service;
- If the Subscriber or any of its Authorized Users competes with Casolve directly or indirectly, they are not permitted to utilize the Casolve Services; and
- Any other use of the Casolve Service by the Subscriber is prohibited if it conflicts with the Agreement, the Documentation, or the law.
C. Subscriber’s Obligations
- Implementation. To facilitate communication and make decisions throughout the deployment of the Casolve Services, the Subscriber shall choose a primary and secondary point of contact (the “Casolve Administrator”). Subscriber is aware that the successful and timely performance of Subscriber’s obligations under the provisions of this Agreement is a requirement for Casolve to complete the implementation process. If the Subscriber requests or needs on-site installation services, Casolve may charge the Subscriber for any incidental travel-related costs, as agreed to and detailed in a Quote/Invoice/Sales Order/Casolve’s Billing page.
- Subscriber is aware of the following: (I) Casolve will be released from its obligations to implement the Casolve Services within any specified time frame if Subscriber fails to make good faith efforts to do so; (ii) Casolve expects and relies on Subscriber’s good faith efforts, including timely and responsive communication surrounding the implementation efforts.
- Third-party hardware or software Each Authorized User will require a personal computer, tablet, or other computing devices with an Internet connection that complies with any written standards from Casolve, as may be described in the Documentation, in order to use the Casolve Service, the Subscriber acknowledges and agrees. Additionally, for the Subscriber to access, use, or fully benefit from the Casolve Service, specific third-party software that is not integrated into the Casolve Service may need to be installed on a such computer or other devices (each such device when properly installed with the required third-party software to access the Casolve Service, herein referred to as an “Authorized Device”) (including a compatible third party web browser). For the usage of the Subscriber’s Authorized Users, Subscriber shall be solely responsible for procuring Authorized Devices at Subscriber’s own expense. The terms and conditions of any end-user licensing agreement included with the third-party software that the subscriber has independently obtained must be followed. A few open-source software components may also be a part of Casolve Services; each of these components has its own copyright notice and license, which are both contained in the relevant license file and documentation. The obligation to abide by such third-party terms and conditions is on the subscriber. Subscriber acknowledges that Subscriber’s access to and use of the Casolve Service does not carry, and Subscriber does not receive under this Agreement any license, covenant not to sue, or other rights under any third party intellectual property rights or other rights.
- By using the Casolve Services, the Subscriber agrees to take precautions to ensure that no code, files, or programs are used that could disrupt, damage, or limit the functionality of any computer software or hardware, or telecommunications equipment. This includes, but is not limited to, avoiding the introduction of viruses or other harmful code into the software used by Casolve Services or by hosted systems or servers. Casolve disclaims all liability for any loss or damage to a subscriber’s data or other property or materials. The Subscriber is completely responsible for safeguarding and backing up the Subscriber’s Data as well as any other subscriber-owned materials and property.
- Casolve advises using the Google Chrome web browser (“Browser”) to access Casolve and making sure that all Browser updates are applied. Although it is not advised, if a user chooses to access the Casolve Services using a different web browser, they must make sure it supports HTTP/2 and TLS 1.2 or 1.3.
- Data Migration
- Data Migration
- Migration of data. Depending on what is stated in the relevant Quote/Invoice/Sales Order/Casolve’s Billing page, Casolve may offer data migrating services. To facilitate communication and make decisions throughout the data transfer operations, the Subscriber must give Casolve the names and contact details of the Subscriber’s Casolve Administrator(s). The Subscriber understands and accepts that the timely and efficient fulfillment of the Subscriber’s obligations under the provisions of this Agreement is fully necessary for Casolve to finish the data transfer process.
- The importing of data and/or documents (as specified in a Quote/Invoice/Sales Order/Casolve’s Billing page) into the subscriber’s Casolve organization is included in data migration services. In accordance with the schedule and instructions provided by the Subscriber’s Implementation team, the Subscriber must upload a copy of the Data and/or documents they have contracted for migration to Casolve’s designated service location. The extraction of any Data from the prior provider of the Subscriber is not Casolve’s responsibility (s). Any Data that cannot be retrieved from the Subscriber’s prior provider(s) or any delays brought on by the Subscriber’s failure to extract Data and/or documents within the specified timetable are not the responsibility of Casolve. Any additional charges imposed by the Subscriber’s prior provider(s) for additional Data and/or documents are not the responsibility of Casolve. Prior to the migration of information into production, the subscriber will be asked to approve the data mapping and document alignment. Casolve is not liable for any data or documents that are not migrated as a result of incomplete or inaccurate data mapping or incomplete or inaccurate document alignment. The number of legacy servers or systems that the subscriber plans to migrate from is indicated by the quantity associated with data or document migration as stated on the Quote/Invoice/Sales Order/Casolve’s Billing page. The copy of such Data will be used by Casolve to carry out test migrations. Subscriber accepts that Casolve and Subscriber both share responsibility for the migration procedure. In order to make sure that the Data is being imported and mapped correctly, subscriber feedback is required at each test or draft migration.
- Any changes made to the migration itself after it has been given the go-ahead for the final migration will be regarded as additional work, perhaps requiring more time and money. If the Subscriber wants the most recent data available, after a test migration that the Subscriber has accepted, an updated copy of the Data must be performed.
- Following the final migration, Casolve promises to retain the subscriber’s copy of uploaded data files for 90 days. The copy of uploaded data files will be planned for hard deletion from the Casolve systems after ninety (90) days. In the event that the deleted copy of the uploaded data files has to be recovered, the subscriber is responsible for sending Casolve a fresh copy of the files in a readable format.
- Subscriber represents and warrants that it will engage in good faith best efforts to migrate the Data Subscriber wishes to upload to the Casolve Service to Casolve’s designated platform.
- Subscriber is aware of the following: (I) Casolve will be released from its obligations to complete the data migration within any given time period if Subscriber fails to make good faith efforts to migrate the Data; (ii) Casolve expects and relies on Subscriber’s good faith efforts, including timely and responsive communication surrounding the data migration efforts; and (iii) Casolve cannot complete a successful and timely data migration in the absence of Subscriber.
2. Data. The subscriber is aware that it is exclusively responsible for obtaining data from the prior provider and delivering it to Casolve in a suitable, commercial format that is common in the business. Subscriber additionally comprehends that any Data sent to Casolve in an acceptable, commercial format that is commonly used in the sector is exclusively its responsibility for the correctness, quality, integrity, legality, reliability, appropriateness, and ownership. If the Subscriber fails to deliver data in an acceptable, commercially viable format, Casolve may charge extra costs to convert the data to the appropriate format and/or take other measures to permit the use of the Data on the Subscriber’s behalf. Up to three test or draft migrations and one final migration are included in data migration expenses. After the live transfer, there may be additional costs for any additional testing and/or modifications.
3. In order to provide the Casolve Services to the Subscriber and any data migration services described here, the Subscriber hereby grants to Casolve a royalty-free, irrevocable license to use any pre-existing materials the Subscriber has provided to Casolve under this Agreement or under any Quote/Invoice/Sales Order/Casolve’s Billing page.
4. Auditing rights. In order to prove compliance with this Agreement, the Subscriber undertakes to maintain records that are adequate to show how many Authorized Users have access to the Casolve Service. Upon giving the subscriber fair written notice in advance, Casolve may audit the subscriber’s use of the Casolve Service. In addition to any other remedies, Casolve may have, Subscriber, shall cure such breach within thirty (30) days of written notice from Casolve by paying all applicable subscription fees that were due and payable by Subscriber at the time Subscriber exceeded the scope of Subscriber’s permitted use of the Casolve Service, or if an audit reveals that Subscriber has failed to pay any associated subscription fees for such use. If any such audit reveals that Subscriber has knowingly violated any material term of this agreement or that Subscriber has underpaid Casolve by a sum greater than five percent (5%) of the amounts due Casolve in the period being audited, then Subscriber shall also pay or reimburse Casolve for the audit’s costs.
7. Features for server communication. In order to provide the Subscriber with features that prevent unauthorized access to or use of the Casolve Service, the Subscriber understands and accepts that the Casolve Service may incorporate server access limits, security measures, and other technologies. Subscriber acknowledges that they won’t try to undermine or alter any security measures included in the Casolve Service, nor will they encourage or help anyone else do so.
8. Credentials for login. If the required functionality is made available as part of the Casolve Service, the Subscriber acknowledges and agrees that the Subscriber shall require each Authorized User to establish a user account, including a username and password, or other login credentials (collectively, “Login Credentials”) in order to access and use the Casolve Service. Each Authorized User is entirely accountable for protecting the privacy of their Login Credentials and for any and all actions are taken on the Casolve Service while using those Login Credentials.
5. Term and Termination.
- Agreement’s duration. In the absence of an earlier termination in line with this Agreement, this Agreement will continue in force for the Term indicated in the Subscriber’s Quote/Invoice/Sales Order/Casolve’s Billing page.
If the applicable Quote/Invoice/Sales Order/Casolve’s Billing page is silent as to renewal terms, all subscriptions shall automatically renew for an additional one (1) year or one(1) renewal period based on the subscribed plan, unless either party provides thirty (30) days prior written notice of its intent not to renew prior to the end of the then-current Term. Failure by Subscriber to comply with any terms of this Agreement, including any implementation requirements for any Casolve Services, shall not delay or modify the Term or any of Subscriber’s payment obligations hereunder or under any Quote/Invoice/Sales Order/Casolve’s Billing page.
2. Termination. Casolve reserves the right, in its sole and reasonable discretion, to revoke the Subscriber’s access to Casolve Services without providing any previous notice and without being held responsible for any subsequent damages that may occur. Unless the breach is the non-payment of fees due under this Agreement, in which case the breach must be cured within ten (10) days of notification, either party may terminate this Agreement immediately upon notice to the other party if the other party commits a non-remediable breach or if the other party fails to remedy a remediable breach within thirty (30) days after being notified in writing of the such breach.
3. Termination effects. All subscriptions provided to Subscriber hereunder shall expire upon termination of this Agreement, and Subscriber’s Authorized Users shall promptly stop using the Casolve Service. All fees paid in advance are non-refundable, and the Subscriber will not be entitled to a pro-rata refund of any portion of such fees, unless otherwise expressly stated, and any early termination of this Agreement does not cancel, suspend, or terminate the obligation to pay fees for the remaining portion of the Term. After termination or expiration, Casolve is under no duty to keep any uploaded data files for more than our standard practice of 60 days.
4. Uploaded Data Files Backup. Casolve shall not be obligated to store any Uploaded Data Files for more than sixty (60) days following the expiration or termination of this Agreement by either party. Within twenty (20) days following the date of termination or expiration, Subscriber shall notify Casolve, in writing, whether it would like the Uploaded Data Files: (i) destroyed, or (ii) returned to Subscriber in a mutually agreed-upon format. Subscriber shall be solely responsible for all costs associated with such return. Upon written request, Casolve will provide to the Subscriber a written certification of the deletion/destruction of Uploaded Data Files. Casolve shall be permitted to retain copies of any Uploaded Data Files solely for archival, legal, and/or regulatory purposes; provided that, Casolve shall not use the Subscriber Data for any other purpose.
5. Provisions for Survival. In addition to any financial obligations that Subscriber has to Casolve for the Casolve Service and/or services under any Schedules or Addendums received prior to the effective date of termination, Sections mentioned in this agreement will survive any termination of this Agreement.
6. Pricing and Payment Terms.
- The Quote/Invoice/Sales Order/Casolve’s Billing page contains pricing and terms that are to be treated as Casolve’s Confidential Information and should not be disclosed to any third party without Casolve’s prior written approval.
- Upon no less than thirty (30) days prior to written notice, Casolve may increase fees at the conclusion of the Initial Term or any Renewal Term, as defined and specified in the relevant Quote/Invoice/Sales Order/Casolve’s Billing page. This increase will become effective at the start of the following renewal term.
- All costs included in the Quote/Invoice/Sales Order/Casolve’s Billing page must be paid by the Subscriber. [Casolve will provide an advance invoice to the Subscriber and otherwise carry out the terms of the Subscriber’s Quote/Invoice/Sales Order/Casolve’s Billing page (s). Invoiced charges are payable through credit card, cheque, debit, or bank transfer ten (10) days following the invoice date, unless otherwise specified in the subscriber’s Quote/Invoice/Sales Order/Casolve’s Billing page(s). The subscriber is in charge of keeping their billing and contact information current, complete, and correct with Casolve. In addition to its other rights and remedies, Casolve shall have the right to terminate this Agreement and/or stop the Casolve Service if payment is not received within ten (10) days of the invoice due date. Except as otherwise provided herein or in a Quote/Invoice/Sales Order/Casolve’s Billing page, (I) fees are quoted and payable in CAD dollars (unless otherwise agreed), (ii) fees are based on the products and/or services purchased and not actual usage, (iii) payment obligations are non-cancelable and fees paid are non-refundable, and (iv) the number of Casolve Licenses purchased cannot be decreased during the relevant Term specified on the Quote/Invoice/Sales Order/Casolve’s Billing page.
- Overages. If applicable, overage costs detailed in the Product Terms (found at https://www.Casolve.com/product-terms/) will be billed monthly in arrears.
- Late Fees: Invoices that are past due will be charged interest at the lower of 1.5% per month or the maximum rate permitted by relevant law. The subscriber agrees to cover any collection charges, including any fair legal fees, costs, and expenditures.
- Adding Users: Each Casolve License allows for the addition of a single user. Users are not permitted to ever exchange usernames or passwords. At the same fee specified in the relevant Quote/Invoice/Sales Order/Casolve’s Billing page, the Subscriber may add further Casolve Licenses. Additional licensing payments will be applied to the subscriber’s subsequent invoice and prorated for the balance of the contract.
- Invoicing. Subscriber should supply Casolve with valid and up-to-date (I) credit card information, or (ii) debit information for Quote/Invoice/Sales Order/Casolve’s Billing pages with recurring costs of less than $10,000.00 USD. The amounts listed in the Quote/Invoice/Sales Order/Casolve’s Billing page for the Initial Term and any Renewal Term, as specified in Section of this Agreement, may be charged to the Subscriber’s credit card or may be withheld from the Subscriber’s bank account when the Subscriber provides Casolve with either credit card or debit information. These fees must be paid beforehand and in accordance with the aforementioned payment cycle. For Quote/Invoice/Sales Order/Casolve’s Billing pages with recurring fees of more than $10,000.00 USD or for Quote/Invoice/Sales Order/Casolve’s Billing pages where the Subscriber does not elect to provide credit card or debit information, Casolve shall invoice the Subscriber in accordance with the terms of the Quote/Invoice/Sales Order/Casolve’s Billing page and in advance.
- Taxes. Unless otherwise specified, all taxes, levies, duties, and other similar assessments of any kind, including but not limited to value-added, sales, use, and withholding taxes, leviable by any local, state, provincial, federal, or foreign jurisdiction (collectively, “Taxes”), are not included in Casolve’s fees or pricing. Without limiting the foregoing, Subscriber is responsible for all Taxes of any kind imposed on any amounts payable by Subscriber hereunder by any federal, state, or local governmental or regulatory authority, whether or not known to Subscriber and/or Casolve, other than, to be clear, any taxes imposed on Casolve’s income, property, and staff. The appropriate amount shall be billed to and paid by Subscriber if Casolve is legally required to pay or collect Taxes for which Subscriber is accountable under this paragraph unless Subscriber presents Casolve with a valid tax exemption certificate authorized by the relevant taxing authority. If the Subscriber fails to pay any relevant Taxes or provides a tax exemption certificate, the Subscriber is responsible for protecting Casolve from any fines, interest, or other tax liabilities.
- Disputes. Within five (5) days of the invoice date, Casolve must obtain written notification from the subscriber of any disputed charges; otherwise, the subscriber is believed to have renounced the right to do so. Any uncontested portion of the invoice must be paid by the subscriber on or before the due date, regardless of any disputes. The information pertaining to the disputed charges must be included in the disagreement notification in a fair amount of detail. Any disputed charges must be settled as soon as possible by the parties.
- Service suspension and acceleration. Casolve may, without limiting its other rights and remedies, accelerate Subscriber’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable. Casolve may also disable Subscriber’s Logon Credentials and suspend Subscriber’s and Subscriber’s Authorized Users’ access to any services, including the Casolve, if any amount owed by Subscriber under this or any other agreement for any Casolve Services is ten (10) or more days past due.
7. Service Support
- Technical support: The Casolve Help Center will be accessible to subscribers at no additional cost for an infinite time. During Casolve’s regular business hours, 10:00 a.m.–6:00 p.m. Monday–Friday ET, except for Canadian holidays, the subscriber will also have access to email-based support services.
- Availability. Casolve will use commercially reasonable efforts consistent with prevailing industry standards to make the Casolve Service available at least ninety-nine percent (99.0%) of the time as measured over the course of each Notification month during the Term, except for (a) scheduled maintenance; (b) unplanned downtime or (c) any unavailability caused by circumstances beyond Casolve’s reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, pandemics, civil unrest, acts of terror, strikes or other labor problems, Internet or other cloud service provider failures or delays, or denial of service attacks.
Without first getting the third party’s written authorization, neither party will divulge any sensitive information to the other.
Except as specifically provided for in this Agreement, any Confidential Information given hereunder shall remain the exclusive property of the Disclosing Party and the Receiving Party shall have no interest in or rights therein.
Casolve reserves the right to disclose Subscriber’s Confidential Information to such third party in connection with their performance of services on Casolve’s behalf. Examples of services that Casolve may contract with third parties to perform include but are not limited to marketing assistance, email delivery, hosting, backup and recovery services, customer service, and data analysis. Any third parties hired by Casolve as service providers must uphold the confidentiality of any information given to them, and they are not allowed to use such information for any other reason than to provide services for Casolve.
The parties acknowledge that the use or disclosure of Confidential Information without authorization would constitute a material breach of this Agreement, could result in irreparable harm to the party who disclosed it, and would entitle the party who disclosed it to seek injunctive or other equitable relief to prevent such use or disclosure without the need to post a bond.
Except for any Confidential Information that is a trade secret as defined by applicable law, the receiving party will continue to be bound by its obligations for as long as such information remains eligible for trade secret protection under applicable law, but in no event for a period of less than the seven (7) years. The provisions of this Section shall survive the termination of this Agreement for a period of seven (7) years.
9. Ownership; Feedback
- Casolve Ownership. As between Casolve and Subscriber, Casolve retains all rights, title, and interest (including all Intellectual Property Rights and other rights) in and to the Casolve Service and all equipment, infrastructure, websites, materials, or deliverables provided to Subscriber by Casolve, including any updates of any of the foregoing, any intangible ideas, residual knowledge, concepts, know-how and techniques related to or learned from its performance of any data migration services, and any feedback submitted by Subscriber regarding Casolve’s current or future products or services, subject only to the limited rights. Subscriber does not acquire any other rights, express or implied, in the Casolve Service other than those rights expressly granted under this Agreement.
- Feedback. If Subscriber elects to provide any feedback or comments to Casolve related to the Casolve Service (“Feedback”), all of the Subscriber’s Feedback shall be the sole and exclusive property of Casolve, and Casolve shall have the right to use and disclose such Feedback in any manner and for any purpose in Casolve’s discretion without remuneration, compensation or attribution to Subscriber, provided that Casolve is under no obligation to use such Feedback.
- Lists of clients. Despite anything to the contrary in the foregoing, Casolve may (I) during the Term, identify Subscriber as a user of the Casolve Service by displaying Subscriber’s name and logo on its website and associated marketing materials; and (ii) use and publish Subscriber’s user reviews and feedback of the Casolve Service in publications, presentations, and marketing materials used by Casolve.
10. Limited Warranty; Limitation of Liability
- Restrictive Warranty. Casolve guarantees that the Casolve Service will operate substantially in line with its published specifications and Documentation during the Term. Furthermore, Casolve assures that all data migrating services will be executed with professionalism and skill. If Casolve’s warranty under this Section is violated, Casolve commits to make commercially reasonable steps to restore the Casolve Service to substantially the way it was intended to work and to re-perform the data migration services, if necessary. If Casolve notifies Subscriber that it is unable to remedy any material breach of this warranty, Subscriber or Casolve shall have the right to terminate the affected service and, upon such termination, Casolve will refund to Subscriber a pro rata portion of any fees Subscriber prepaid for the canceled service based on the remaining unused portion of the Term for the canceled service. For any breach of the warranty above, Subscriber’s sole and exclusive remedy shall be as provided in this Section.
- EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SUBSCRIPTION AGREEMENT, THE Casolve SERVICE AND SERVICES PROVIDED HEREUNDER (INCLUDING ANY SERVICES PROVIDED UNDER ANY SCHEDULES OR ADDENDUMS TO THE SUBSCRIPTION AGREEMENT) ARE PROVIDED “AS IS”, “AS-AVAILABLE”, WITH ALL FAULTS, AND Casolve MAKES NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Casolve OR ITS REPRESENTATIVES SHALL CREATE A WARRANTY. EXCEPT AS OTHERWISE EXPRESSLY SET FORTH IN THIS SUBSCRIPTION AGREEMENT, THE SUBSCRIBER’S USE OF THE Casolve SERVICE IS ENTIRELY AT THE SUBSCRIBER’S OWN RISK AND THE ENTIRE RISK AS, TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT ARE WITH THE SUBSCRIBER. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO SUBSCRIBERS. Casolve IS NOT A LAW FIRM OR LEGAL SERVICES PROVIDER AND DOES NOT AND CAN NOT PROVIDE ANY LEGAL ADVICE, EXPLANATION, OPINION, OR OTHER RECOMMENDATION ABOUT CONTRACT STRATEGY OR THE MEANING OF TERMS IN ANY CONTRACT GENERATED BY THE SERVICES OR OTHERWISE.
- Limitation of Liability. EXCEPT TO THE EXTENT THE FOLLOWING LIMITATION OF LIABILITY IS PROHIBITED BY LAW, Casolve’S, AND ITS EMPLOYEES’, OFFICERS’, DIRECTORS’, STOCKHOLDERS’, AGENTS’, SUCCESSORS’, ASSIGNS’, AFFILIATES’, CONSULTANTS’ AND SUPPLIERS’ (COLLECTIVELY, THE “Casolve ENTITIES”) TOTAL LIABILITY TO SUBSCRIBER SHALL BE LIMITED TO DIRECT DAMAGES SUSTAINED BY SUBSCRIBER UP TO A MAXIMUM AMOUNT OF THE FEES PAID BY SUBSCRIBER TO Casolve UNDER THIS SUBSCRIPTION AGREEMENT IN THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM; PROVIDED THAT, REGARDLESS OF ANY STATUTE OR LAW, NO CLAIM OR CAUSE OF ACTION, REGARDLESS OF FORM, ARISING OUT OF OR IN CONNECTION WITH THIS SUBSCRIPTION AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN TWELVE (12) MONTHS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR REASONABLY OUGHT TO HAVE BEEN DISCOVERED BY SUBSCRIBER; FURTHERMORE, NO Casolve ENTITY NOR ANY OF ITS LICENSORS SHALL BE LIABLE TO SUBSCRIBER FOR SERVICES PERFORMED BY AN IMPLEMENTATIONS PARTNER, PERSONAL INJURY, OR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OR INTERRUPTION OF BUSINESS, LOSS OF DATA, LOSS OF GOODWILL OR LOST PROFITS), UNDER ANY THEORY OF LIABILITY, INCLUDING WITHOUT LIMITATION CONTRACT, NEGLIGENCE, STRICT LIABILITY, OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THIS SUBSCRIPTION AGREEMENT (INCLUSIVE OF ANY SCHEDULES AND/OR ADDENDUMS HEREUNDER), EVEN IF Casolve HAS BEEN ADVISED OF THE RISK OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO SUBSCRIBERS. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE-STATED REMEDY FAILS IN ITS ESSENTIAL PURPOSE. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS OF LIABILITY IN THIS SECTION AND IN THE OTHER PROVISIONS OF THIS SUBSCRIPTION AGREEMENT AND THE ALLOCATION OF RISK HEREIN ARE ESSENTIAL ELEMENTS OF THE BARGAIN BETWEEN THE PARTIES, WITHOUT WHICH Casolve WOULD NOT HAVE ENTERED INTO THIS SUBSCRIPTION AGREEMENT.
- Use of API Keys. Subscriber acknowledges and agrees that if Casolve grants Subscriber access to any Casolve API, Subscriber assumes all responsibility for the actions of any person or entity with whom Subscriber shares such API access.
- Use of Notification Function. If Subscriber uses the Casolve Notification feature, Subscriber acknowledges that it is solely responsible for: (i) its own proper data entry; (ii) maintaining any and all said Notification entries; and (iii) maintaining its own mandated deadlines, including but not limited to statutory deadlines. Casolve is not responsible for any misuse of the Notification functionality or any issues that arise from such aforementioned misuse.
- Third-Party Services. As a part of the Casolve Services, Casolve may offer links to, or include within such Casolve Services, certain software, services, or information by or from other third parties (“Third-Party Services”). Such Third-Party Services are licensed to Subscriber, and Subscriber agrees that its use of such Third-Party Services is subject to and will comply with the license terms of such Third-Party Service and the terms of this Subscriber Agreement. Casolve is not liable or responsible for any acts or omissions created or performed by these Third-Party Services. The Third-Party Services are provided “as is” and Subscriber will have no remedy against Casolve with respect to any Third-Party Service.
- Disclaimer for Third-Party Services. Casolve is not the publisher of information supplied by Third-Party Services. Casolve ASSUMES NO RESPONSIBILITY AND MAKES NO REPRESENTATIONS, WARRANTIES, RECOMMENDATIONS, ENDORSEMENTS, OR APPROVALS WITH REGARD TO SUCH THIRD-PARTY INFORMATION.
- Subscriber’s Indemnity Obligations. Subscriber agrees to indemnify, defend and hold harmless Casolve and its officers, directors, employees, stockholders, agents, representatives, successors and assigns from and against any and all losses, claims, costs, demands, damages, deficiencies, actions, judgments, settlements, interest, awards, penalties, fines, liabilities or expenses of whatever kind, including, but not limited to, reasonable attorneys’ fees and costs (“Losses”) arising from any third party suits, actions, claims, or proceedings (“Claims”): (i) alleging that the content and/or Data (including Personal Data) infringes or misappropriates a third party’s intellectual property, privacy or other rights; (ii) resulting from Subscriber’s or Subscriber’s Authorized User’s use of the Casolve Service; (iii) resulting from Subscriber’s or Subscriber’s Authorized Users’, employees’ or agents’ breach of or failure to comply with or fulfill any term, condition, representation, or covenant under this Agreement; or (iv) any failure by Subscriber or its employees, agents or Authorized Users to comply with any applicable federal, state or local laws, regulations or codes applicable to Subscriber’s obligations under this Agreement or use of the Casolve Services.
- Casolve’s Indemnity Obligations. Casolve agrees to indemnify and defend Subscriber from and against any Claim initiated by a third party alleging that Subscriber’s use of the Casolve Service in accordance with the terms of this Agreement infringes any United States patents of which Casolve is aware, any copyrights of any third party or trade secret rights, provided, however, that Casolve shall not be obligated to indemnify and defend Subscriber from and against any Claim to the extent arising from (i) any matter for which Subscriber is obligated to indemnify Casolve (ii) use of the Casolve Service with any other software or service not provided by Casolve, if, but for such combination, the use of the Casolve Service would not have been infringing; and/or (iii) use of the Casolve Service under a Trial/Evaluation Subscription. In addition, Subscriber shall be obligated to notify Casolve promptly upon learning of any Claim for which Subscriber is seeking indemnification, and Subscriber must provide Casolve with sole control and authority over the defense and/or settlement of the Claim, subject to Subscriber’s provision of reasonable assistance at the request of Casolve and at Casolve’s expense. Should the Casolve Service become or, in Casolve’s reasonable opinion is likely to become, the subject of any Claim, Casolve may, at its option and expense, either: (a) procure for Subscriber the right to continue to use the Casolve Service as contemplated by this Agreement, (b) replace or modify the Casolve Service to make its use in accordance with this Agreement non-infringing, or (c) with thirty (30) days’ notice to Subscriber, terminate this Agreement and refund to Subscriber any prepaid subscription fees covering the remainder of the Term after the effective date of termination.
- Exclusive Remedy. This Section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of Claim described in this Section.
12. General Terms
- Governing Law; Dispute Resolution. This Agreement and all matters arising out of or relating to this Agreement shall be governed by the laws of the Ontario Province without giving effect to any choice of law rule. Each party hereby irrevocably consents to the mandatory and exclusive personal jurisdiction and venue of the Provincial and federal courts located in Toronto, Ontario with venue proper only in Toronto, Ontario. Except for (i) the right of either party to apply to a court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or to prevent irreparable harm; or (ii) the right of Casolve to enforce its right to collect amounts due under this Agreement, any claim or controversy arising out of or relating in any way to this Agreement or to a breach of this Agreement, shall be finally, and exclusively, settled by binding arbitration in Toronto, Ontario. The arbitration shall be held before one arbitrator under the Commercial Arbitration rules in force at that time. The arbitrator shall be selected pursuant to the AAA rules. The arbitrator shall apply the substantive law of the Ontario Province, except that the interpretation and enforcement of this arbitration provision shall be governed by the Arbitration Act. To begin the arbitration process, a party must make a written demand therefor. The prevailing party shall be entitled to receive from the other party all Lawyer’ss’ fees and costs incurred. Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction in Ontario.
- Severability and Waiver. If any provision of this Agreement is held to be illegal, invalid, or otherwise unenforceable, such provision will be enforced to the extent possible consistent with the stated intention of the parties, or, if incapable of such enforcement, will be deemed to be severed and deleted from this Agreement, while the remainder of this Agreement will continue in full force and effect. The waiver by either party of any default or breach of this Agreement will not constitute a waiver of any other or subsequent default or breach.
- Assignment. Subscriber may not assign, sell, transfer, delegate, or otherwise dispose of, whether voluntarily or involuntarily, by operation of law or otherwise, this Agreement or any rights or obligations under this Agreement without the prior written consent of Casolve which may be withheld at Casolve’s discretion. Any purported assignment, transfer, or delegation by the Subscriber shall be null and void. Casolve shall have the right to assign this Agreement without Subscriber’s consent and without prior notice to the Subscriber. Subject to the foregoing, this Agreement shall be binding upon and shall inure to the benefit of the parties and their respective successors and assigns.
- Notice. Any notice in connection with this Agreement shall be given in writing and must be: (i) hand-delivered; (ii) sent via first class registered mail, postage prepaid; (iii) sent by an internationally recognized overnight air courier, postage prepaid, or (iv) by electronic mail, in the case of notices to Subscriber, to the electronic mail address provided by Subscriber and, in the case of notices to Casolve, to [email protected]. Notices will be considered to have been given at the time of actual delivery in the case of hand delivery, two (2) business days after depositing in the mail as set forth above, or one (1) day after delivery to the overnight courier, or immediately upon delivery by electronic mail. Notices sent to Subscriber shall be sent to its address as set forth on the first page of the Quote/Invoice/Sales Order/Casolve’s Billing page, to the electronic mail address set forth on the first page of the Quote/Invoice/Sales Order/Casolve’s Billing page, or to such physical or electronic mail address as subsequently modified by written notice given in accordance with this Section.
- Conflicts. In the event of any conflict or inconsistency between this Agreement and the Casolve Service End User Terms of Service, the terms of this Agreement shall control and prevail to the extent of such conflict or inconsistency.
- Injunctive Relief. Subscriber acknowledges and agrees that a breach or threatened breach of any covenant contained in this Agreement would cause irreparable injury, that monetary damages would be an inadequate remedy, and that Casolve shall be entitled to temporary and permanent injunctive relief, without the posting of any bond or other security, to restrain Subscriber, from such breach or threatened breach. Nothing in this Section shall be construed as preventing Casolve from pursuing any and all remedies available to it, including the recovery of monetary damages from Subscriber.
- Independent Contractor. Casolve’s relationship with the Subscriber will be that of an independent contractor. It is agreed and understood that neither party is the agent, representative, nor partner of the other and neither party has any authority or power to bind or contract in the name of or to create any liability against the other in any way or for any purpose pursuant to this Agreement. Nothing contained in this Agreement shall be construed to give either party the power to direct and control the day-to-day activities of the other, constitute the parties as partners, joint venturers, principal and agent, employer and employee, co-owners, or otherwise as participants in a joint undertaking, or allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever.
- Language. English is the language of this Agreement, and all communications and proceedings must be conducted in English. If this Agreement is translated, then the English language version will control.
- Modifications. Casolve may modify this Agreement from time to time in which case Casolve will update the “Last Revised” date at the top of this Agreement. If material changes are made, Casolve will use reasonable efforts to attempt to notify the Subscriber, such as by e-mail and/or by placing a prominent notice on the first page of this Agreement. However, it is solely Subscriber’s responsibility to review this Agreement from time to time to view any such changes. The updated Agreement will be effective as of the time of posting, or at such later date as may be specified in the updated Agreement. Subscriber’s continued access or use of the Casolve Services after the modifications have become effective will be deemed Subscriber’s acceptance of the modified Agreement.
- Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the Parties with respect to the subject matter hereof and supersedes all prior or contemporaneous communications and understandings between the Parties including, without limitation, any prior or subsequent purchase orders, requests for proposals, invoice, receipt, correspondence, acceptance or otherwise proffered by the Subscriber, unless each party mutually and expressly agrees to such provision in writing. To the extent there is a conflict between the terms of this Agreement and any of the foregoing, the terms of this Agreement shall prevail.