This Agreement is between Customer and Chata Technologies Inc. (“Chata”) (collectively, the “Parties” and each a “Party”). This Agreement governs Customer’s use of the Services.
BY SUBSCRIBING FOR THE SERVICES OR BY USING THE SERVICES, CUSTOMER AGREES TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
IF CUSTOMER DOES NOT AGREE WITH EACH AND EVERY PROVISION OF THIS AGREEMENT, OR IF THE USER IS NOT AUTHORIZED TO AGREE TO THIS AGREEMENT ON CUSTOMER’S BEHALF, THEN NEITHER YOU NOR ANY OTHER PERSON ACTING ON THE CUSTOMER’S BEHALF OF CUSTOMER MAY USE THE SERVICES.
UNAUTHORIZED USE OF THE SERVICES IS STRICTLY PROHIBITED.
ARTICLE 1 – DEFINITIONS AND INTERPRETATION
(a) In this Agreement, the following terms have the following meanings, and all other capitalized terms have the meaning set out elsewhere in this Agreement:
(i) “Agreement” means these terms and conditions together with all Subscription Details.
(ii) “Claim” means a claim, counterclaim, suit, action, complaint, demand, cause of action, proceeding or hearing.
(iii) “Confidential Information” means all non-public information, in any form and on any medium, disclosed by the Disclosing Party to the Receiving Party under this Agreement, regardless of the form of disclosure and whether the disclosure is marked as “confidential”. In the case of Chata, its Confidential Information includes non-public information about the Services, the operation and use of the Services and non-public user manuals.
(iv) “Customer” means the person using, accessing or subscribing to the Services.
(v) “Customer Data” has the meaning set out in Section 5.1(a).
(vi) “Data Source” means a source of data, such as accounting records stored in QuickBooks® Online or in Xero™ to which the Services connect.
(vii) “Disclosing Party” means the Party disclosing information to the other Party.
(viii) “License” means a non-exclusive, limited, non-sublicensable, non-transferable, revocable and restricted license.
(ix) “Losses” means losses, liability, damages, costs, expenses, and disbursements and legal fees including reasonable attorneys’ fees and court costs.
(x) “No Charge Model” means the account type described in Section 6.2.
(xi) “Partner“ means a partner (such as for an accountant or bookkeeper, including QuickBooks® Cloud ProAdvisors and Xero™ partners) who will access its client’s account through the Services.
(xii) “Partner Token” means a token issued to a Partner to allow them to access a client account.
(xiii) “Premium Subscription” has the meaning set out in Section 3.1(a).
(xiv) “Receiving Party” means a Party receiving information from the Disclosing Party.
(xv) “Representatives” means a Party’s partners, directors, officers, employees, agents, licensors, service providers, suppliers, and other representatives. Customer’s Representatives include all Users.
(xvi) “Service” means each service purchased or obtained by Customer from Chata as specified in applicable Subscription Details, and any additional related services provided by Chata pursuant to this Agreement.
(xvii) “Subscription Details” means the details of a subscription made by Customer which may be made online, which may include, among other details, the applicable currency, billing frequency (such as monthly or annually), etc.
(xviii) “Term” means the initial term and all renewal terms of this Agreement.
(xix) “Token” means a Universal Token or a Partner Token.
(xx) “Universal Token” means a token issued to each user to use the Services.
(xxi) “User” means an individual who is authorized by Customer to use a Service on Customer’s behalf subject to the terms of this Agreement.
(a) In this Agreement: (i) a reference to “Agreement” and other similar terms refers to this Agreement as a whole, and not just to the particular provision in which those words appear; (ii) “including” means including without limitation; (iii) headings in this Agreement are for reference only and do not define, limit or enlarge the scope or meaning of this Agreement or any of its provisions; (iv) references to persons include individuals, partnerships, associations, trusts, unincorporated organizations, societies and corporations; and (v) reference to a day, month, quarter, or year means a calendar day, month, quarter, or year, unless the context indicates otherwise.
(b) Unless expressly stated otherwise in this Agreement, if there is any inconsistency or conflict between the documents that comprise this Agreement, the provisions of those documents will take precedence and govern in the following order of priority: (i) Subscription Details; (ii) the terms of this Agreement.
ARTICLE 2 – TERM
(a) The initial term of this Agreement commences on the date specified in the first Subscription Details issued under this Agreement or upon your first use of the Services, whichever occurs earlier, and will continue in full force and effect for the duration specified in the Subscription Details or until your use ends, unless terminated earlier pursuant to this Agreement.
(b) Following the initial term, this Agreement will automatically renew for additional, consecutive twelve (12) month renewal terms, unless terminated earlier pursuant to this Agreement or unless either Party gives notice of non-renewal to the other Party by no later than sixty (60) days before the end of the initial term or the then-current renewal term.
(c) Despite the above, the Term for a trial subscription commences on the date specified in the Subscription Details issued for the trial subscription and will continue for fourteen (14) days unless Chata in its sole discretion terminates early or extends the term. On the expiration or termination of a trial subscription the account changes to a No Charge Model account.
(d) All licenses terminate upon expiration or termination of this Agreement.
ARTICLE 3 – USE OF SERVICES
3.1 Premium Subscription
(a) Subject to the provisions of this Agreement and Customer’s prompt payment of all applicable fees, and except for trial subscriptions, Chata grants to Customer a License during the Term to access and use the Service only for Customer’s internal business purposessubject to the restrictions and requirements set forth in this Agreement and Chata grants to each Partner an additional License during the Term to access and use the Services for each client who has granted the Partner access to the client’s Data Source.
3.2 Trial Subscription
(a) If Customer is subscribing to a Service for a trial subscription, then subject to the provisions of this Agreement, Chata grants to Customer a License during the trial term to use the Service only for Customer’s non-productive internal evaluation of the Service for use by Customer and not for any other purpose whatsoever. A trial subscription can only be used once per organization or Partner. Once a trial ends, Customer’s account will be changed to a No Charge Model unless the Customer has purchaseda Premium subscription.
3.3 Partner Account
(a) Each Partner must subscribe to a Premium subscription to be able to use the Services for its clients. A Partner agrees that it becomes the billing contact for each client who authenticates the Partner as having the right to access the client’s Data Source. The Partner will be granted a Partner Tokenfor each client that grants the Partner access. Each client must have a Universal Token from Chata (which may initially be obtained by the client by signing up fora trial subscription). Partners agree that they are solely responsible for any liability arising from their access to a client’s account. A Partner represents and warrants to Chata that it has the right to access a client’s account. A Partner agrees to stop accessing a client account when the Partner no longer has the right to do so or no longer has the client’s permission to do so.
3.4 Additional Services
(a) Chata may provide additional services to Customer as agreed to by the Parties from time to time. Unless otherwise agreed in writing by the Parties, additional services will be provided only during the Term and subject to this Agreement and such additional terms and conditions (including payment of additional fees) as agreed to in writing by the Parties.
3.5 Restrictions and Customer Responsibilities
(a) Customer and Users will use the Services in accordance with the applicable documentation provided by Chata.
(b) Customer and Users will not:
(i) use the Services except as expressly permitted by this Agreement;
(ii) license, sublicense, grant, sell, resell, lend, lease, loan, share, transfer, assign, pledge, publish, transmit, publicly display or perform, distribute, rent, create any interest in, or otherwise give or make available or permit the use of the Services or their functionality or their performance to or for the benefit of any other person, whether as a service bureau or otherwise, and with or without charge, except as expressly permitted by this Agreement;
(iii) use the Services in a way that interferes with or disrupts the integrity or performance of the Services or other related systems or networks;
(iv) attempt to gain unauthorized access to the Services or related systems or networks;
(v) copy, reproduce, translate, modify, enhance, or create derivative works from the Services or any part of them;
(vi) alter, attempt to circumvent, destroy, obscure, or remove any notices (including trademark and copyright notices), proprietary codes or locks, digital rights management tools or security or control measures;
(vii) reverse engineer or otherwise access or use the Services to create a product or service using similar ideas, features, function; or
(viii) permit, assist or encourage any other person to do any of the foregoing.
(c) Customer shall be solely responsible for its actions and the actions of its Users while using Services and the contents of its transmissions through the Services.
(d) Customer agrees:
(i) to abide by all local and international laws and regulations applicable to Customer’s use of the Services, including without limitation all laws regarding the transmission of technical data exported by Customer;
(ii) not to upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of the Services or another’s computer;
(iii) not to use the Services for illegal purposes;
(iv) not to post, promote or transmit through the Services any unlawful, harassing, libellous, abusive, threatening, harmful, vulgar, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind or nature; and
(v) not to transmit or post any material using the Services that encourages conduct that could constitute a criminal offense or give rise to civil liability.
3.6 Technical Support
(a) A Service may include limited, remote technical support for Users. Additional technical support may be available for additional fees. For the purpose of calculating fees for technical support, each request for technical support (whether by telephone, email or otherwise) is a separate support incident.
(b) When using an API or a third party product, support for the third party system is exclusively provided by the third party.
(a) Customer agrees that Chata may in its discretion change the Services from time to time without any notice or liability to Customer or to any other person.
(a) The Service uses a reputable third party Internet service provider and U.S.-basedhosting service that is subject to commercially reasonable security precautions to prevent unauthorized access to the Services. Customer acknowledges that, despite such security precautions, use of or connection to the internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to the Services and Customer Data. Accordingly, Chata cannot and does not guarantee the privacy, security or authenticity of any information transmitted over the internet. Customer is solely responsible and liable for the transmission of Customer Data to and from the systems used by Chata to provide the Services. Customer agrees that Chata is not liable for unauthorized access (e.g. hacking) to Customer’s transmission facilities, premises or equipment, or for unauthorized access to Customer’s data files, programs, procedures or information thereon.
3.9 Third Party APIs
(a) The Software interfaces with third party application programming interfaces (APIs) to allow the User to usethird party services with the Services and to access information stored with third party services. Chata does not accept any responsibility or liability for the third party APIs or for any Customer data that is stored on such third party systems.
3.10 Mobile App
(a) Any access and use of the Services using a mobile app downloaded through a third party channel (such as an app store) is subject to the terms set out in the click-through license agreement included with or referenced in such third party channel.
ARTICLE 4 – AUTHORIZED USERS
4.1 User Licenses and Restrictions
(a) Customer will only access and use the Services through Users for whom Customer has purchased tokens or for its clients who are Users if Customer is a Partner user. Customer will ensure that Users use the Services only on behalf of Customer and strictly in accordance with the restrictions and requirements set forth in this Agreement.
(b) Customer is fully responsible and liable for all acts and omissions by or on behalf of all Users, and for User’s access to and use of the Services and the results obtained from the Services. Customer will ensure that all Users fully comply with all of Customer’s obligations under this Agreement.
(c) Chata, acting reasonably, may refuse to register any individual as a User, and may restrict, suspend or terminate (in whole or in part) the permission granted to any User to access and use the Services.
(d) Customer is responsible for maintaining the confidentiality of all passwords and for ensuring that each password is used only by the authorized User. Customer is entirely responsible for any and all activities that occur under Customer’s account. If Chata, in its reasonable discretion, considers a password to be insecure or to have been used inappropriately, then Chata may immediately cancel the password without notice to Customer or to the affected User.
(e) Customer agrees to immediately notify Chata of any unauthorized use of the Customer’s account or any other breach of security known to Customer.
ARTICLE 5 – CUSTOMER DATA
5.1 Customer Data Ownership
(a) As between Chata and Customer, Customer owns all data, information or material that Customer uses the Services to process (collectively “Customer Data”). “Customer Data” does not include queries entered into the Services. In the case of a Customer who is a Partner, “Customer Data” also includes all of its clients’ data, information or material.
(b) Except as permitted in this Agreement, Chata will not edit, delete or disclose the contents of Customer Data unless authorized by the Customer, except as required to allow a third party subcontractor to host Customer Data or unless Chata is required to do so by law or in the good faith belief that such action is necessary to:
(i) conform to applicable laws or comply with legal process served on Chata;
(ii) protect and defend the rights or property of Chata; or
(iii) enforce this Agreement.
(c) Use of Customer Data is at Customer’s own risk.
5.2 Data Use by Chata
(a) Chata may access Customer Data to respond to service or technical problems with the Services. Chata will not sell Customer Data to third parties.
(b) Chatamay provide User statistical information such as usage or traffic patterns in aggregate form to third parties, but such information will not include personally identifying information or Customer Data.
(c) Customer acknowledges that the Services contain technologies that monitor, record and report to Chata information regarding Users’ use of the Services and metadata, including query terms used by Users. Customer agrees that Chata may use that information for the purposes of system administration and for the purposes of development and improvement of the Services (and other products).
(d) Chata may disclose to Customer and its personnel any personally identifiable information that Users enter into the Services.
(e) Chata uses a third party hosting service which will store the Customer Data for use by Chata.
5.3 Customer Data Storage
(a) Customer Data is storedby Chata to ensure performance. Customer Data is permanently deleted after a User stops any further use of the Services.
5.4 Customer Obligations
(a) Customer shall comply with all obligations imposed by law that are applicable to Customer Data. Customer acknowledges and agrees that it will apply customary and reasonable safeguards for sensitive Customer Data (such as health information, credit card information, personal information and similarly sensitive information), including determining whether the use of the Services is acceptable for such sensitive Customer Data.
(b) Customer shall indemnify, defend and hold Chata harmless from and against any third party claims resulting from the Customer’s use of the Services to process Customer Data or from Chata’sdisclosure or handling of Customer Data in a manner that is consistent with the terms of this Agreement.
(c) Customer shall obtain from each User and client its informed consent to the collection, retention, use and disclosure of their personally identifiable information as may be entered as part of the Customer Data into the Services.
(d) Customer shall be responsible for maintaining an archive or back-up copy of all Customer Data, and Chata shall have no liability for any loss of Customer Data, whether caused by Chata, Customer or any third party service provider.
(e) Customer is solely responsible and liable for, and bears all risks and liabilities associated with, Customer Data, including the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Customer Data.
(f) Customer agrees not to use the Services for any application where a failure of the Services could result in death, serious injury, environmental damage or property damage. Examples of prohibited uses include medical life support devices, water treatment facilities, nuclear facilities, weapons systems, chemical facilities, mass transportation and aviation. Customer acknowledges that Chata makes no assurances that the Services are suitable for any high-risk use.
(a) Chata makes no representation, warranty, condition or guarantee of any nature or kind whatsoever, whether express, implied or statutory, or arising from custom or trade usage or by any course of dealing or course of performance, regarding Customer Data, and disclaims any and all responsibility and liability for Customer Data to the fullest extent permitted by law.Chata assumes no responsibility for Customer’s deletion, correction, destruction, loss or infringement of any Customer Data.
(b) The Services are not a substitute for Customer’s application of its professional judgment when interpreting any Customer Data or results from the Services or when a Partner uses the Services for its clients.
ARTICLE 6 – FEES
6.1 Premium Subscription
(a) Customer will pay Chata the fees and charges for the Services for each Data Source (the “Fees”) specified in the Subscription Details and as otherwise set forth in this Agreement. Chata may use a third party payment provider or system to collect the Fees in which case Customer’s payment information may be stored by such third party.
6.2 No Charge Model
(a) If Customer has elected to use the no-charge model, Customer may use the limited Services made available by Chata for no charge, provided Customer agrees that in such case that the full feature set for the Services will not be available, ads may be served to Customer, data use will be limited, queries are not structured and other limitations may apply when compared to the premium account.
6.3 Partner Account
(a) A Partner agrees to pay the fees for its clients for which Partner is the billing contact.
(a) Fees are exclusive of all applicable federal, state, provincial and municipal sales, use, value-added, property, excise, import, foreign, withholding and other governmental taxes, duties, charges, levies, fees, tariffs and assessments (collectively the “Taxes”). Customer is solely responsible and liable for, and will pay and remit, all Taxes (other than corporate income taxes payable by Chata) associated with, based on or due as a result of Fees, and all related interest, penalties and expenses.
(a) Chata may require advance payment before providing the Services. Payment obligations are not cancellable and advance payments are non-refundable. All Fees and applicable Taxes are payable in the currency specified in the applicable invoice, provided that if no currency is specified Fees and applicable Taxes are payable in United States currency.
6.6 Overdue Payments
(a) Overdue payments will be subject to interest at a rate of 1.5% for each month (18% per annum) or fraction thereof that the payment is overdue or the highest rate permitted by applicable law, whichever is lower. Except to the extent required by law, all amounts payable to Chata under this Agreement are payable in full without any deduction or setoff.
6.7 Fee Changes
(a) Chata may in its sole discretion change the amount of the Fees, the Fee models that are available, payment terms that are available, charges for Partner accounts and any other payment details set out in this Article 6.
ARTICLE 7 – INTELLECTUAL PROPERTY OWNERSHIP
(a) Customer acknowledges and agrees that, as between the Parties, Chata and its licensors will at all times own and retain all right, title and interest (including all intellectual property rights) throughout the world in and to the Services and software used to provide the Services.
(b) The Services are licensed, not sold, to Customer. Except for the limited licenses expressly set forth in this Agreement, Customer and its personnel will not acquire any right, title or interest in or to the Services or software. All rights not expressly granted under this Agreement are reserved by Chata.
(a) If Customer or its personnel (including End Users) give Chatafeedback about the Services (including any ideas or suggestions for enhancements or improvements) (collectively the “Feedback”), Customer agrees that Chata and its suppliers and Chata’s respective successors, assigns and licensees may use and commercialize the Feedback in any way and for any purpose without providing any compensation or recognition to Customer or to any other person.
(a) Chata™ and related logos and marks are the registered or unregistered trademarks of Chata and its licensors. Customer does not have any license or right to use any of Chata’s trademarks. All rights are reserved. Intuit® and QuickBooks® are the registered trademarks of Intuit Inc. Xero™ is the trademark of Xero Limited. Google® is the registered trademark of Google LLC or its affiliates. Other third party marks are the trademarks of the applicable third party.
ARTICLE 8 – CUSTOMER’S OBLIGATIONS
8.1 Customer Representations and Warranties
(a) Customer represents and warrants to Chata that Customer has the right, power, capacity and authority to enter into and perform its obligations and exercise its rights under this Agreement, and all information provided by or on behalf of Customer to Chata regarding Customer’s use of the Services is true, accurate, current and complete.
8.2 Unauthorized Use
(a) Customer will promptly notify Chata if Customer knows of or suspects any unauthorized access to or use of the Services.
8.3 Equipment Requirements
(a) Customer is solely responsible for supplying, configuring, maintaining and protecting all hardware, software and services necessary for its use of the Services.
ARTICLE 9 – TERMINATION
(a) Despite any other provision of this Agreement, either Party may terminate this Agreement for cause effective immediately upon delivery of notice of termination to the other Party if the other Party breaches this Agreement (including failure to make a required payment on time) and such breaching Party has not remedied the breach within thirty (30) days after receipt of a breach notice from the non-breaching Party. The non-breaching Party, in any such notice, shall identify the breach and state the non-breaching Party’s intention to terminate this Agreement if the breach is not remedied within the cure period.
(b) Chata may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or if a receiver, receiver-manager, liquidator or trustee in bankruptcy is appointed in respect of all or substantially all of Customer’s business.
9.2 Discontinuation of Service
(a) Despite any other provision of this Agreement, Chata may in its discretion terminate a Service at any time after providing 90 days of written notice to Customer if Chatadecides in its discretion to cease making the Service generally commercially available. Upon any such termination Chata will refund to Customer the unused portion of any pre-paid Fees.
9.3 Consequences of Expiration or Termination
(a) If this Agreement expires or terminates for any reason: (i) all licenses and tokens granted by Chata under this Agreement will terminate immediately and automatically, without any notice to Customer; (ii) Customer and all Users will immediately cease using the Services; (iii) each Party will remain responsible and liable for all obligations and liabilities arising prior to the termination or expiration of this Agreement; and (iv) Customer will promptly pay Chata all outstanding Fees and Taxes.
9.4 Suspension of Services
(a) Chata may in its discretion immediately suspend the provision of any or all of the Services if Customer fails to make any payment when due or if Customer is in breach of any of the terms in Section 3.5. Such suspension will not be a breach of this Agreement by Chata, entitle Customer to a refund or suspension of Fees, or give rise to any liability by Chata to Customer or any other person.
(a) Despite any other provision of this Agreement, if this Agreement expires or is terminated for any reason, the following provisions of this Agreement, and all other provisions necessary to their interpretation or enforcement, will survive the expiration or termination of this Agreement and will remain in full force and effect and be binding upon the Parties as applicable: Sections 1, 5, 6, 7, 9, 10, 11, 13, 14and 15.
ARTICLE 10 – LIMITED WARRANTY AND DISCLAIMERS
10.1 Limited Warranty
(a) Subject to the other provisions in this Article 10, Chata warrants that the Services will substantially conform to the applicable online documentation if the Services are used as intended. If there is a breach by Chata of the foregoing warranty, Customer’s sole and exclusive remedies, and Chata’s sole obligations to Customer, are to, at Chata’s option: (i) modify the Service so that it substantially conforms with the applicable online documentation, (ii) if the documentation is in error, modify the documentation to accurately reflect the actual operation of the Services or (iii) terminate this Agreement and refund to Customer the Fees (if any) paid by Customer in respect of the Services during the three (3) months prior to the termination date and any then-unused Fees.
(a) THE WARRANTY SET OUT IN SECTION 10.1 IS IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES, CONDITIONS AND GUARANTEES. EXCEPT FOR THE WARRANTY SET OUT IN SECTION 10.1, THE SERVICES ARE PROVIDED “AS IS”, “AS AVAILABLE” AND “WITH ALL FAULTS”, AND WITHOUT ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF ANY NATURE OR KIND WHATSOEVER, WHETHER EXPRESS, IMPLIED OR STATUTORY, OR ARISING FROM CUSTOM OR TRADE USAGE OR BY ANY COURSE OF DEALING OR COURSE OF PERFORMANCE, INCLUDING ANY REPRESENTATIONS, WARRANTIES, CONDITIONS OR GUARANTEES OF OR RELATING TO DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NON-INFRINGEMENT, PERFORMANCE, QUALITY, RESULTS, SUITABILITY, TIMELINESS, TITLE OR WORKMANLIKE EFFORT, ALL OF WHICH ARE HEREBY DISCLAIMED BY CHATA TO THE FULLEST EXTENT PERMITTED BY LAW.CUSTOMER IS SOLELY RESPONSIBLE AND LIABLE FOR THE SELECTION AND USE OF THE SERVICES TO ACHIEVE INTENDED RESULTS.
(b) Customer uses the Services at Customer’s own risk.
(c) The Services may be affected by numerous factors beyond Chata’s control, and may not be continuous, uninterrupted or secure. Customer acknowledges that the Services may be subject to limitations, delays, and other problems inherent in the use of the Internet and electronic communications, and Chata is not responsible or liable for any delays, delivery failures, or other damage resulting from such problems.
ARTICLE 11 – INDEMNITIES
(a) During and after the Term, Customer will defend, indemnify and hold harmless Chata and its Representatives from and against any and all third party Claims and associated Losses arising from, connected with or relating to:
(i) the use of the Services by or on behalf of Customer or the results obtained therefrom (including all reports created using the Services), provided that the foregoing does not apply to an intellectual property claim for which Chata is obligated to defend or indemnify Customer pursuant to Article 12; and
(ii) any negligence, misconduct, or breach of this Agreement by Customer or any person for whom Customer is responsible pursuant to this Agreement or at law.
(b) Chata will: (i) give Customer prompt notice of the indemnified Claim; (ii) grant control of the defence and settlement of the indemnified Claim to Customer (provided that a Claim will not be settled without the prior written consent of Chata, which consent will not be unreasonably withheld or delayed); and (iii) reasonably co-operate with Customer regarding the defence and settlement of the indemnified Claim. Chata and its Representatives retain the right to participate in the defense of and settlement negotiations relating to any Claim with counsel of its own selection at its sole cost and expense.
ARTICLE 12 – INTELLECTUAL PROPERTY INDEMNITY
12.1 Defence and Indemnity
(a) Subject to Sections 12.2 and 12.3, Chata will defend Customer against an action brought against Customer by an unaffiliated third party in a court of competent jurisdiction in Canada or in the United States of America to the extent that the action is based upon an allegation that Customer’s use of the Services in accordance with this Agreement infringes or misappropriates a patent or copyright under the laws of Canada or in the United States of America that is owned by such unaffiliated third party, and Chata will indemnify Customer against any final judgments rendered in favour of such third party.
(a) Subject to Section 12.3, if a third party claim as set out in Section 12.1 prohibits Customer from continued use of the Services in accordance with this Agreement, or if at any time the Services are, or in Chata’s opinion are likely to become, the subject of a third party allegation or claim of infringement or misappropriation of third party intellectual property rights, then Chata shall in its discretion either: (i) obtain for Customer the right to use the Services in accordance with this Agreement, (ii) modify the Services to make them non-infringing or (iii) terminate this Agreement and refund to Customer the unused portion of any pre-paid Fees.
12.3 Exclusions and Limitations
(a) Chata’s defence and indemnification obligations in Section 12.1(a) are conditioned on and subject to Customer: (i) promptly notifying Chata of such third party claim, (ii) giving Chata sole control of the defence and settlement of each such third party claim and (iii) upon request by Chata, fully cooperating with Chata regarding the defence and settlement of the third party claim. Customer retains the right to participate in the defense of and settlement negotiations relating to such third party claim with counsel of its own selection at its sole cost and expense.
(b) Chata’s defence and indemnification obligations in Section 12.1(a) do not apply any actual or alleged infringement or misappropriation arising from, connected with, or relating to: (i) the use of the Services in combination with any software, services, technology, hardware or other materials not provided by Chata or expressly authorized by this Agreement, (ii) any use of the Services in breach of this Agreement or (iii) any wrongful act or omission by Customer or any person for whom Customer is responsible or any breach of this Agreement by Customer.
(c) DESPITE ANY OTHER PROVISION OF THIS AGREEMENT, IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT OF CHATA’S OBLIGATIONS AND LIABILITIES PURSUANT TO THIS ARTICLE 12 (INCLUDING ALL LEGAL FEES PAID BY CHATA TO DEFEND AGAINST ANY THIRD PARTY CLAIM AND ALL AMOUNTS PAID BY CHATA TO SETTLE A THIRD PARTY CLAIM OR TO SATISFY ANY OBLIGATIONS OR LIABILITIES RESULTING FROM ANY FINAL JUDGMENT) EVER EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID BY CUSTOMER TO CHATA PURSUANT TO THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH EITHER PARTY FIRST RECEIVES WRITTEN NOTICE OF AN ACTUAL OR REASONABLY ANTICIPATED THIRD PARTY CLAIM.
(a) This Article 12states Customer’s sole and exclusive remedies, and Chata’s entire responsibility and liability, for any Claims or Proceedings arising from, connected with, or relating to any actual or alleged infringement or misappropriation of any intellectual property rights of any third party.
ARTICLE 13 – LIABILITY EXCLUSIONS AND LIMITATIONS
13.1 Liability Exclusions and Limitations
(a) EACH PARTY’S AND ITS REPRESENTATIVES’ LIABILITY, JOINTLY AND SEVERALLY, TO THE OTHER PARTY AND ITS REPRESENTATIVES OR ANY OTHER PERSON UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT OR THE SUBJECT MATTER OF THIS AGREEMENT (INCLUDING THE SERVICES) IS LIMITED TO DIRECT DAMAGES SUFFERED BY THE OTHER PARTY ONLY, AND IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL EITHER PARTY OR ITS REPRESENTATIVES, JOINTLY OR SEVERALLY, BE LIABLE TO THE OTHER PARTY OR ITS REPRESENTATIVES OR OTHER PERSON UNDER THIS AGREEMENT OR OTHERWISE, FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY LOSS OR DAMAGE OF ANY NATURE OR KIND WHATSOEVER, INCLUDING LOSS OF DATA, INFORMATION, BUSINESS, PROFITS, USE, OR ECONOMIC LOSS.
(b) WITHOUT LIMITING THE GENERALITY OF SECTION 13.1(a), IN NO EVENT AND UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE LIABILITY OF CHATA OR ITS REPRESENTATIVES, JOINTLY AND SEVERALLY, TO THE CUSTOMER AND ITS REPRESENTATIVES OR ANY OTHER PERSON, JOINTLY AND SEVERALLY, UNDER THIS AGREEMENT OR OTHERWISE, ARISING FROM, CONNECTED WITH OR RELATING TO THIS AGREEMENT, EVER EXCEED THE TOTAL AMOUNT OF FEES FOR THE SERVICE TO WHICH THE LIABILITY RELATES THAT WERE PAID BY CUSTOMER TO CHATA DURING THE THREE (3) MONTHS PRIOR TO THE DATE ON WHICH THE LIABILITY AROSE.
(c) This Section 13.1 applies to liability under any theory of liability (including contract, tort, strict liability, statutory liability, or any other theory of law or equity or under any statute or regulation), regardless of any negligence or other fault or wrongdoing (including fundamental breach or gross negligence) by the liable Party or its Representatives, and even if a Party has been advised of the possibility of the potential loss or damage being incurred.
ARTICLE 14 – CONFIDENTIALITY
14.1 Scope of Confidential Information
(a) For greater certainty: (i) all non-public Customer Data is the Confidential Information of Customer; and (ii) all non-public information concerning the Services and all related information and data and software and technology, and the terms of this Agreement, are the Confidential Information of Chata. All Fees and pricing terms are the Confidential Information ofChata.
(b) Information will not be considered to be Confidential Information to the extent that the information is: (i) already known to the Receiving Party free of any restriction at the time it is obtained from the Disclosing Party, (ii) subsequently learned by the Receiving Party from an independent third party free of any restriction and without breach of this Agreement, breach of any agreement with such third party or breach of any other confidentiality obligation, (iii) or becomes publicly available through no wrongful act of the Receiving Party or (iv) independently developed by the Receiving Party without reference to any of the Disclosing Party’s Confidential Information.
14.2 Duty to Protect
(a) Subject to Section 14.3, the Receiving Party will: (i) use the Disclosing Party’s Confidential Information only during the Term and only to the extent necessary to perform the Receiving Party’s obligations and exercise the Receiving Party’s rights under this Agreement, (ii) disclose the Disclosing Party’s Confidential Information only to the Receiving Party’s personnel, and then only to the extent that such disclosure is necessary to perform the Receiving Party’s obligations or exercise the Receiving Party’s rights under this Agreement, (iii) both during and indefinitely after the Term maintain the strict confidentiality of the Disclosing Party’s Confidential Information using the same degree of care as the Receiving Party affords to its own confidential information of a similar nature which it desires not to be published or disseminated, and in no event less than reasonable care, to prevent the unauthorized use or disclosure of the Disclosing Party’s Confidential Information and (iv) ensure that its personnel and other persons to whom the Receiving Party discloses the Disclosing Party’s Confidential Information strictly comply with the requirements and restrictions set forth in items (i)-(iii) above.
14.3 Permitted Disclosures
(a) Despite the restrictions set forth in paragraph 14.2, the Receiving Party may disclose the Disclosing Party’s Confidential Information: (i) to the extent such disclosure is required by a valid order of a court or governmental body of competent jurisdiction and authority or by applicable law, provided that before making any such disclosure the Receiving Party gives reasonable notice to the Disclosing Party of the potential disclosure and reasonably assists the Disclosing Party in seeking a protective order preventing or limiting the potential disclosure or use of the Disclosing Party’s Confidential Information, unless such prior disclosure is prohibited by the order or applicable law and (ii) to its legal, accounting and tax advisors to the extent that such disclosure is required for a bona fide legal, accounting or tax purpose.
14.4 Return and Destruction of Confidential Information
(a) Upon expiration or termination of this Agreement or at any time upon request by the Disclosing Party, the Receiving Party will: (i) promptly deliver to the Disclosing Party all originals and copies, in whatever form or medium, of all the Disclosing Party’s Confidential Information and all documents, records, data and materials, in whatever form or medium, containing such Confidential Information in the Receiving Party’s possession, power or control, and the Receiving Party will delete all of the Disclosing Party’s Confidential Information from all of the Receiving Party’s computer systems, retrieval systems and databases, unless this Agreement expressly authorizes the Receiving Party to retain the Confidential Information and (ii) request that all persons to whom it has provided any of the Disclosing Party’s Confidential Information comply with this Section14.4; and if requested by the Disclosing Party the Receiving Party will deliver to the Disclosing Party a declaration signed by a senior officer of the Receiving Party certifying that the Receiving Party and its personnel have complied with this Section14.4.
ARTICLE 15 – GENERAL TERMS
(a) Chata may reference Customer in any published list or directory of Chata’s customers. Upon request by Chata, Customer will provide Chata with Customer’s trademark or logos for use in those lists and directories, subject to a reasonable, royalty-free trademark license agreement.
(b) Chata may deliver Codes, and other notices to Customer by email, facsimile, or delivery to Customer’s addresses specified in the most current Subscription Details or otherwise on record in Customer’s file with Chata. Customer will give all notices to Chata under this Agreement in writing delivered by courier to Chata (Attention Legal Department) at Chata’s head office address at Suite 2100, 333- 7th Ave SW, Calgary, Alberta, Canada or such other address for notice as specified by Chata from time to time.
(c) This Agreement will be governed by and construed and interpreted solely in accordance with the laws of the Province of Alberta, Canada and applicable federal laws of Canada, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. The Parties agree that this Agreement excludes the application of the United Nations Convention on Contracts for the International Sale of Goods.
(d) Each Party irrevocably submits and attorns to the exclusive jurisdiction of the courts of the Province of Alberta, Canada sitting in the City of Calgary. Each Party irrevocably waives all rights to trial by jury.
(e) Customer may not assign this Agreement without Chata’s prior written consent, which consent may be withheld in Chata’s discretion. Chata may assign this Agreement without Customer’s consent, provided that the surviving or acquiring party agrees to be bound by the terms of this Agreement. This Agreement is binding upon and will enure to the benefit of the Parties and their respective successors and permitted assigns.
(f) Despite any other provision of this Agreement, and except for the payment of money, neither Party will be liable for any delay in performing, or failure to perform, any of its obligations under this Agreement to the extent performance is delayed or prevented due to any cause or causes that are beyond that Party’s reasonable control. Any delay or failure of this kind will not be deemed to be a breach of this Agreement by the defaulting Party, and the time for the defaulting Party’s performance of the affected obligation will be extended by a period that is reasonable in the circumstances.
(g) The Parties are independent contracting parties, and nothing in this Agreement creates or will be construed to create a partnership, joint venture, agency, employment, or other similar relationship between the Parties.
(h) If any provision of this Agreement is held to be invalid or unenforceable for any reason, then the provision will be deemed to be severed from this Agreement and the remaining provisions will continue in full force and effect without being invalidated in any way, unless as a result of any such severance this Agreement would fail in its essential purpose.
(i) No consent or waiver by a Party to or of any breach by the other Party of its obligations under this Agreement will be effective unless in writing and signed by both Parties.
(j) Except as expressly set forth in this Agreement, the Parties’ respective rights and remedies under this Agreement are cumulative and not exclusive of any other rights or remedies to which they may be entitled under this Agreement or at law or equity.
(k) The Parties agree that this Agreement and all related documents will be in the English language.
(l) This Agreement may be amended or supplemented only by a written instrument signed by both Parties or their successors or permitted assigns. Purchase orders or other documents issued by Customer, whether or not accepted by Chata, are for administrative convenience only, and any terms and conditions contained in those documents are of no force or effect and will not in any way amend or supplement this Agreement.
(m) This Agreement is the complete agreement between Chata and Customer with respect to the subject matter of this Agreement, and supersedes any and all previous communications, representations, negotiations, discussions, agreements or understandings, whether oral or written. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, express, implied or statutory, between the Parties other than as expressly set forth in this Agreement.
(n) Customer will receive and use the Services only for lawful use, subject to this Agreement.