Please read these Terms carefully before using the Services. These Terms apply to all visitors, Users and others who wish to access or use the Services and the Website. By accepting this Agreement, by (a) clicking a box indicating acceptance, (b) accepting or executing an Order Form that references this Agreement, (c) downloading the Software; (d) creating or accessing a User account; or (e) otherwise accessing or using the Services or the Website, you agree to be bound by these Terms, and all terms, policies and guidelines incorporated by reference in these Terms. If you disagree with any part of these Terms, then you do not have permission to use or access the Services.
If you are accepting this Agreement on behalf of a company or legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms, in which case the terms “Client”, “User”, “you” and “yours” (as the case may be) shall refer to such entity and its affiliates. If you do not have such authority, you must not accept this Agreement and may not use the Services.
Order Forms are automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.
1 DEFINITIONS
1.1 “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the subscription on behalf of the Client.
1.2 “Anti-Spam Law” means any applicable federal, provincial, state, and local laws, regulations and rules governing the sending of commercial electronic messages.
1.3 “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services.
1.4 “AUP” means the Provider’s Acceptable Use Policy described in Section 8 below.
1.5 “Client” means the individual or organization who is bound by the terms of an Order Form and these Terms and Conditions.
1.6 “Client Content” means any Content submitted or uploaded to the Services by the Client and its Users.
1.7 “Client Data” means any data of any type or content submitted to the Services by or on behalf of a Client or any User, including without limitation: (a) data submitted, uploaded or imported to the Services by the Client (including from Third Party Services), (b) data provided by or about Participants that are collected from the Client Published Content; and (c) the Client Content.
1.8 “Client Published Content” means the content made available by the Client to Third Party Services and users pursuant to the terms of this Agreement and any applicable third-party terms. Client Published Content may include the Provider Content, Client Content, and Third Party Content.
1.9 “Cloud Provider” has the meaning given in Section 6.1.
1.10 “Content” means any files, designs, meshes, rigs, models, data or data sets, images, documents, objects, elements, audio-visual, other content, project information, libraries, audio, links, applications and other software, services or other material related to video game assets.
1.11 “Documentation” means the technical user documentation provided with the Services.
1.12 “Fees” means the fees to be paid by the Client pursuant to an Order Form, these Terms and any applicable Schedules.
1.13 “Order Form” means (i) the Provider Software as a Service (SaaS) Order Form; (ii) an online order through the Website specifying the Services to be provided hereunder, that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
1.14 “Participant” means a third party to whom the Client makes the Client Content available to.
1.15 “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.16 “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada.
1.17 “Provider Content” means any Provider Content made available by the Provider for use by the Client, as specified in the Services, Website, or Order Form.
1.18 “Schedule” means a schedule, which is attached to this Agreement, or which may be added hereafter by written agreement of the parties.
1.19 “Services” means the use of the Software, Provider Content, and other related services to be provided by the Provider to the Client pursuant to the Order Form.
1.20 “Software” means the Provider’s Open Dev Kit software platform licensed to the Client pursuant to the terms of the Order Form.
1.21 “Term” shall have the meaning given in Section 14.1.
1.22 “Third Party Content” means any Content or other material of a third party, whether or not made available through the Services.
1.23 “Third Party Services” means any software, software-as-a-service, platform, data sources or other products or services not provided by the Provider to which the Client may make available the Client Published Content.
1.24 “User” means an individual user who (i) accesses the Website and/or is permitted to use the Software; and (ii) agreed to these Terms. Users may include employees or contractors of the Client.
1.25 “Website” means the Provider’s website made available https://opendevkit.com or its sub domains or domains with identical names under other top domains and owned by Provider.
2 SERVICES
2.1 Services Overview. The Services refer to a cloud-based video game creation platform. The Services are designed to enable the Client and its Users to make use of a variety of Provider Content, Third Party Content, and Client Content for the purposes of creating computer and video games.
2.2 Provision of Services. Each Service is provided on a tiered subscription basis for a set term designated on the Order Form (each, a “Subscription Term”). The Client will purchase, and the Provider will provide the specific Services as specified in the applicable Order Form. Certain subscription tiers may require that the Provider’s trademarks are made visible on any Client Content created or published. Such trademarks are granted to the Client and authorized Users on a limited, non-exclusive, non-transferable, non-sublicensable license. The Client acknowledges that the Provider’s ability to provide the Services is dependent upon the cooperation of and assistance from the Client. Additional services requested by the Client beyond the Services described in the Order may be provided by the Provider, at the Provider’s then-prevailing rates.
3 PRIVACY AND SECURITY
3.1 Privacy Policy. Please refer to our privacy policy by clicking here (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose Personal Information or Personal Information that Participants submit to you through the Services. By using the Services, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
3.2 Security. The Provider agrees to use commercially reasonable technical and organizational measures designed to prevent unauthorized access, use, alteration or disclosure of any Service or Client Data. However, the Provider will have no responsibility for errors in transmission, unauthorized third-party access or other causes beyond the Provider’s control.
4 USER ACCOUNTS
4.1 Provisioning and User Accounts. Upon agreeing to an Order Form, the initial Administrator of the Client will be permitted to register for a User account. Certain Subscription tiers may enable the initial Administrator to add other Administrators and authorize Users subject to the limitations and additional terms described in the applicable Order Form. The Initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User. Access to specific features of the Services are only available to specific user types and the functionalities of the applicable Subscription tier, as detailed in an Order form.
4.2 Free Trial. If a Client agrees to a free trial pursuant to an Order Form or registers for a free trial on the Website (“Free Trial”), the Provider will make the applicable Services available to the Client on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which the Client registered to use the applicable Services, or (b) the start date of the initial Term under an Order Form. Free Trials are permitted solely for the Client’s use to determine whether to purchase a paid subscription to the Services. The Free Trial may not include all functionality and features accessible as part of a paid Subscription Term. Notwithstanding anything to the contrary in Sections 12 and 13, during the Free Trial, the Services are provided “as-is” without any warranty, support or service levels and the Provider shall have no indemnification obligations nor liability of any type with respect to the Services for the Trial Period unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Services provided during the Free Trial shall not exceed $1,000. On or before the last day of the Free Trial, the Client may elect to either: (i) terminate the Free Trial by written notice to the Provider effective immediately after the end of the Free Trial period as set out in the Order Form; or (ii) continue to access the Services past the expiry of the Free Trial provided that the Client enters into a Subscription Term pursuant to the terms of an Order Form. The Client recognizes that the Client’s failure to terminate the Free Trial may result in the automatic Subscription of to the Provider’s Services, subject to the terms detailed in an Order Form.
4.3 Registration. Upon logging into the Software for the first time, the Administrators and Users will be prompted to register for a User account. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software or the Website (“Registration Data”); (b) maintain the security of the their password; (c) maintain and promptly update the Registration Data, and any other information they provide to the Software or the Website, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Provider. The Client shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Client).
5 LICENSE TO SOFTWARE, WEBSITE, PROVIDER CONTENT, AND LICENSE RESTRICTIONS
5.1 License to Services. The Provider hereby grants to the Client and authorized Users a limited, non-exclusive, non-transferable, non-sublicensable license to use the Software, Provider Content and Website made available pursuant to the terms of an Order Form, for legitimate purposes during the Subscription Term. The Client and its Users shall further have the right to modify and create derivative works from any Provider Content made available provided that such modifications and derivatives are subject to the terms of this Agreement and the AUP.
5.2 License Restrictions. Except as set forth in this Agreement, the Order Form, any Schedule and to the extent contrary by Applicable Law: the Client and User may not (a) make or distribute copies of the Software or Website; (b) alter, merge, adapt or translate the Software or Website, or decompile, reverse engineer, disassemble, or otherwise reduce the Software or Website to a human-perceivable form; (c) sell, rent, lease, host or sublicense the Software (except as is incidental or necessary for the provision of the Software to Users); (d) modify the Software or Website or create derivative works based upon the Software or Website; provided however that the foregoing will not restrict the Client’s rights to exploit any Client Data or Client Content which may be incorporated into, reside in, or form a part of the Software; (e) use the Services or the Website in a manner that breaches the rights of any third party, any contract or legal duty or violate any Applicable Law; (f) copy the Software, Documentation, Services or Website or any part, feature, function or user interface thereof; (g) access or use the Services or Website in order to build a competitive product or service; (h) use the Services or Website other than for its intended purposes; (i) do anything to interfere with or impair the intended operation of the Software or Website.; (j) remove or obscure any proprietary or other notices contained in the Services (including without limitation (i) Provider designations or trademarks that may appear as part of the deployment of the Services on Client Published Content, subject to the terms of an Order Form, and (ii) notices on any reports or data printed from the Services); and/or (k) publicly disseminate information regarding the performance of the Services.
6 HOSTING AND SUPPORT
6.1 Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by a reputable third-party provider (“Cloud Provider”). The Provider will be responsible for contracting with the Cloud Provider, and for paying all fees and charges of the Cloud Provider. All Client Data stored on the Services is located on servers operated by the Cloud Provider in the Canada and/or the United States.
6.2 Backups. The Provider will create a backup or cause its Cloud Providers to create routine backups of the Software (including all Client Data). Upon request from the Client, the Provider will provide the Client with a copy of the most recent backup available.
6.3 Support, Training. Support, maintenance and training Services are provided to the Client in accordance with the terms of the Provider’s Service Level Agreement, which is made available online at https://opendevkit.com/service-level-agreement/.
7 CLIENT REPRESENTATIONS AND WARRANTIES; CLIENT OBLIGATIONS; INDEMNITIES REGARDING CLIENT DATA
7.1 Client Representations and Warranties. The Client represents and warrants that the Client’s use of the Services and the use of the Services by the Users will (a) be consistent with this Agreement, the AUP and any licenses provided; and (b) it has the right to enter into this Agreement and to allow the Provider to perform the Services.
7.2 Client Obligations.
(a) General. The Client shall be responsible for providing and maintaining its own Internet access with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials at the Client’s location(s) necessary for accessing the Services.
(b) Client Data. The Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data as well as for the for the accuracy, content and legality of all such Client Data. The Client and authorized Users represent and warrant to the Provider that the Client has all necessary rights, consents and permissions to collect, share and use all Client Data as contemplated in this Agreement and any applicable Order Form and that no Client Data will violate or infringe (i) any third party Intellectual Property Rights or, publicity, privacy, or other rights, (ii) any Laws, or (iii) any terms of service, privacy policies or other agreements governing the Third Party Content or Client’s accounts with any Third Party Services. The Client further represents and warrants that all Client Data complies with the AUP. The foregoing policies and agreements are subject to change by the Provider, from time to time. The Client will be fully responsible for any Client Data submitted to the Services by any Participant as if it was submitted by the Client.
(c) Privacy Laws. The Client and authorized Users represent that (a) they have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information, and the provision of Personal Information to the Provider complies with all applicable Privacy Laws; and (b) all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in this Agreement or our Privacy Policy. Without limiting the generality of the foregoing, the Client may not request Personal Information from Participants through the Services unless such Participants have voluntarily consented to it.
(d) Compliance with Laws. The Client agrees to comply with all Applicable Laws in its use of the Services. Without limiting the generality of the foregoing, the Client will not engage in any unsolicited advertising, marketing, or other activities using the Services, including without limitation any activities that violate Anti-Spam Law.
7.3 Right to Delete Client Data. The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services. If any Client Data contravenes Section 7.2, the Provider shall have the right, at its sole discretion, to delete such Client Data from the Services. Furthermore, the Provider shall have the right to delete all Client Data thirty (30) days after the deletion of a Client Account.
8 ACCEPTABLE USE POLICY
8.1 Acceptable Use of the Services. The Client and its Users may not:
(a) use, or encourage, promote, facilitate or instruct others to use the Services or the Website for any illegal, harmful or offensive use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive; and/or
(b) use the Services or the Website the purpose of exploiting, harming, or attempting to exploit or harm, minors in any way by exposing them to inappropriate content, asking for personal information, or otherwise;
(c) use the Services or Website to promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
(d) misrepresent their identity or impersonate or attempt to impersonate any person or organization, or suggest that they are endorsed by the Provider;
(e) engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Services or Website, or which, as determined by the Provider, may harm the Provider or users of the Services or expose the Provider to liability;
(f) use the Services or the Website to violate the security or integrity of any network, computer or communications system, software application, or network or computing device;
(g) use the Services or the Website for competitive purposes;
(h) reproduce, adapt, translate, replicate, copy, port, or create derivative works of all or any portion of any of the offered Services, except as expressly permitted by the terms of this Agreement;
(i) engage in any decompiling, disassembling or other reverse engineering or otherwise attempting to view or analyze the structure or organization, underlying algorithms or other internals, protocols, data structures or other externals, or the source code of the Services, including any Provider Content, except as expressly permitted pursuant to the terms of this Agreement; and/or
(j) Otherwise attempt to interfere with the proper working of the Services or Website.
9 THIRD PARTY SERVICES AND CONTENT
9.1 Third Party Integrations. The Services may support integrations with certain Third Party Services, as well as the use of Third Party Content. The use of and access to such Third Party Services or Third Party Content may be governed by terms and conditions made available by such third party providers. In order for the Services to communicate with such Third Party Services or make available Third Party Content, the Client may be required to input credentials to allow the Services to access and receive relevant information from such Third Party Services. The Client is solely responsible for complying with any relevant terms and conditions of the Third Party Services and maintaining appropriate accounts in good standing with the providers of the Third Party Services, as may be applicable. The Client acknowledges and agrees that the Provider has no responsibility or liability for any Third Party Services, Third Party Content, or how a Third Party Service uses or processes the Client Data after such is exported to a Third Party Services. The Provider does not guarantee that the Services will maintain integrations with any Third Party Services or will continue to make available any Third Party Content, and the Provider may disable integrations of the Services with any such Third Party Services and/or Content at any time with or without notice to the Client.
10 FEES, EXPENSES AND PAYMENT
10.1 Fees. In consideration for the Services described herein, the Client shall pay to the Provider the Fees more particularly described in the Order Form and any applicable Schedules. Except as otherwise specified herein or in the Order Form, (i) the Fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, and (iii) a subscription type (pertaining to certain User quantities) cannot be decreased during the relevant Subscription Term without the Provider’s prior consent.
10.2 Invoices and Payments. The Provider shall invoice the Client for the Services in accordance with the terms of the Order Form. The Client shall pay such invoices within thirty (30) days from the date of the invoice (or such other time as specified in the Order Form or any Schedule). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of 1.5% per month on overdue amounts, up to 18% per annum.
10.3 Taxes. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Client shall pay to the Provider such taxes, levies and charges which the Provider is registered to charge and collect.
10.4 Suspension of Service and Acceleration. If any charge owing by the Client under these Terms or any other agreement is thirty (30) days or more overdue, the Provider may, without limiting its other rights and remedies, accelerate the Client’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.
10.5 Fees Adjustments. The Services and Fees under any Order Form are subject to periodic price adjustments. Where a price adjustment affects a tier or Service for which a Client is subject to a Subscription Term, such price adjustments shall take effect upon renewal of the applicable Subscription Term.
11 INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
11.1 Ownership of the Software, Content, and Website. This is a subscription agreement for access to and use of the Services. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Services, the Provider Content, the Documentation, the Software, the Website, integrations with the Services and any and all related and underlying technology and documentation and any derivative works, modifications or improvements of any of the foregoing. The Client acknowledges that it is obtaining only a limited right to the Services and that irrespective of any use of the words “purchase”, “sale” or like terms in this Agreement, nothing in this Agreement, the Order Form, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software and Website.
11.2 Rights in Client Data. The Provider acknowledges and agrees that, as between the Parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data, other than pursuant to Section 11.2 of this Agreement, will be collected, handled and used by the Provider. The Client hereby grants to the Provider a non-exclusive, worldwide, royalty-free, non-transferable, right to use, copy, store, transmit, modify, create derivative works of and display the Client Data provided to the Provider solely to perform Services pursuant to this Agreement.
11.3 All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Section.
11.4 License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software, the Services, or the Website.
11.5 Aggregated Anonymous Data. Notwithstanding anything to the contrary herein, the Client agrees that the Provider may obtain and aggregate technical and other data about the Client’s use of the Services that is non-personally identifiable with respect to the Client or any User (the “Aggregated Anonymous Data”), and the Provider may use the Aggregated Anonymous Data to analyze, improve, support and operate the Services and otherwise for any business purpose during and after the term of this Agreement, including without limitation to generate industry benchmark or best practice guidance, recommendations or similar reports for distribution to and consumption by the Client and other Provider customers. The Client acknowledges and agrees that, as between the Parties, the Provider is the sole and exclusive owner of the Aggregated Anonymous Data. For clarity, this Section 11.5 does not give the Provider the right to identify the Client as the source of any Aggregated Anonymous Data.
12 DISCLAIMER AND LIMITATION OF LIABILITY
12.1 Disclaimer. Except as set out in the Order Form or this Agreement, the Services and the Website are provided to the Client and authorized Users on an “as is” basis, without warranties from the Provider of any kind, either express or implied. The Provider expressly disclaims all other warranties, express or implied, including, without limitation implied warranties of merchantability, fitness for a particular purpose, title and non-infringement, unless otherwise specified in the applicable Order Form. The Provider disclaims all liability for any content posted on the Website that may be outdated, inaccurate or misleading. The Provider does not warrant that the Services or the Website will be error-free or will operate without interruption, nor does the Provider warrant that it will review the Client Data for accuracy or that it will preserve or maintain the Client Data without loss or corruption. Provider shall not be liable for the results of any communications sent or any communications that were failed to be sent using the Services. The Provider shall not be liable for delays, interruptions, service failures or other problems inherent in use of the internet and electronic communications, third-party services (including the Third Party Services or Third Party Content), or other systems outside the reasonable control of the Provider, nor shall the Provider be liable for any Client Content or any Client Published Content.
12.2 No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement or any Services, even if advised of the possibility thereof.
12.3 Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement shall not exceed the Fees paid or payable by the Client to the Provider under this Agreement in the six (6) months preceding the Loss.
12.4 Reasonableness of Limitations. The Provider, the Client and Users agree that the limitations contained in this Section 12 are reasonable in scope and form an integral part of this Agreement.
13 INDEMNIFICATION
13.1 Indemnity by the Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third party claim relating to or resulting from (a) any breach by the Client or the Client’s Users of the Client’s obligations under this Agreement, including its obligation to comply with all Applicable Law; or (b) any third party claim that the Client’s use or the Client’s Users use of any Client Data or Third Party Content infringes, misappropriates or otherwise violates the intellectual property rights of any third party.
13.2 Client Indemnity Regarding Client Data or Breach. The Client shall be solely responsible for all inputs, selection and use of the Services and all Client Data or other data transmitted, received or created using the Services, even if transmitted, received or created by someone else, and the Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result from or relating to any Client Data, or any breach by the Client or its Users of this Agreement.
14 TERM
14.1 Term. The term of this Agreement (“Term”) shall commence on the Effective Date set out in the Order Form and continue for the Subscription Term described in the Order Form. Thereafter, this Agreement will automatically renew at the end of each billing cycle unless you cancel auto-renewal by contacting our customer support team. YOU MAY CANCEL AUTO-RENEWAL ON YOUR SUBSCRIPTION AT ANY TIME, IN WHICH CASE YOUR SUBSCRIPTION WILL CONTINUE UNTIL THE END OF THAT BILLING CYCLE BEFORE TERMINATING.
14.2 Modification to Subscription Terms. Unless otherwise specified in an Order Form, the Client may upgrade its applicable subscription tier to a higher tier of Services during any Subscription Term then in effect upon agreeing to a new Order Form and the payment of applicable Fees. For greater certainty, the Client shall not be able to downgrade to a lower subscription tier during any Subscription Term.
14.3 Termination.
(a) Prior to Renewal. Except in the case of a month-to-month Subscription Term, either party may terminate this Agreement by providing written notice to the other party at least (60) days prior to the end of the then current Term. For month-to-month Subscription Terms, the Client may provide thirty (30) days prior written notice to terminate this Agreement. For greater certainty, such notice may be given prior to the end of such current Subscription Term but will only take effect at the end of the then current Subscription Term.
(b) Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Insolvency. Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
14.4 Early Termination. If this Agreement is terminated pursuant to Section 14.3 prior to the end of such current term, the Client shall pay to the Provider, as liquidated damages and not a penalty, an amount equal to the total monthly Fees (as described in the Order Form) multiplied by the number of months remaining prior to the end of such current term.
14.5 Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software or the Website; (c) change, suspend, or discontinue any aspect of the Software or the Website; and (d) impose limits on the Software or Website.
14.6 Effect of Termination. If this Agreement is terminated or expired, then:
(a) the Client will immediately cease any and all use of and access to all Services. The Client acknowledges that following termination, it will have no further access to any Client Data input into any Service; and;
(b) upon termination or the expiry of a Client Term, and with the exception of any Aggregated Anonymous Data, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider ninety (90) days after the date of such termination or ninety (90) days after the expiry of the then-in-effect term provided that no subsequent Term has been entered into, whichever is first.
15 CONFIDENTIALITY AND PRIVACY
15.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party.
15.2 Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
15.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
15.4 Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other party or destroy such copies as directed by that party and certify their destruction.
15.5 Indemnity. Each party agrees to indemnify and hold the other party harmless from and against all loss or damage or any kind and nature suffered by the other party as a result of any breach by it or its representatives of its obligations relating to confidentiality and privacy contained in this Section 15.
15.6 Publicity. The Provider may use the Client’s name, logo, and Client Content to identify the Client as a Provider’s customer of the Services, including on the Provider’s public website and customer lists.
16 GENERAL
16.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.
16.2 Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 11 (Intellectual Property, Client Data and Privacy) (but not section 11.2 (License from Client to Provider)), Section 12 (Disclaimer and Limitation of Liability), Section 13 (Indemnification), Section 14.6 (Effect of Termination), Section 15 (Confidentiality) and applicable provisions of Section 16 (General).
16.3 Dispute Resolution.
(a) This Section 16.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).
(b) Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
(c) All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
(d) Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
16.4 Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.
16.5 Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Client or the Provider is required to perform under this Agreement, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable businessperson applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.
16.6 Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with such other party. The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.
16.7 Currency. Unless otherwise specified in the Order Form, all references to amounts of money in this Agreement refer to U.S. dollars (USD) currency.
16.8 Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any registration data. Second, we may post a notice on the Website. It is your responsibility to periodically review the Website for notices. The Client may provide notice to the Provider by (a) submitting a ticket through the helpdesk; or (b) e-mailing the Provider.
16.9 Successors and Assigns. This Agreement shall ensure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, in its sole discretion.
16.10 Severability. Any provision of this Agreement, which is prohibited or unenforceable in any jurisdiction, will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.
16.11 Entire Agreement. This Agreement, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
16.12 Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
16.13 Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
16.14 Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
16.15 Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the Website or on the Software; or (b) by e-mailing the Administrator(s) of the Client. The Provider will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services. Notwithstanding the foregoing, the information and material on the Website, and the Website, may be changed, withdrawn or removed at any time in the Provider’s sole discretion without notice.
16.16 Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:
SoftWeir Inc.
support@softweir.ca
SUPPORT AGREEMENT
This Support Agreement (“Support Agreement”) forms a part of the Open Dev Kit Software as a Service (SaaS) Terms and Conditions, as amended from time to time (the “Agreement”). Capitalized terms used in this Support Agreement but not defined in this Support Agreement are used as defined in the Agreement.
1 SUPPORT AND MAINTENANCE
1.1 Support Terms. The Provider will provide support to the Client pursuant to the terms and conditions of this Support Agreement and the terms of an Order, as applicable. Each request for support shall be referred to as a “Request”. Unless otherwise specified in an Order Form, support for Requests shall be limited to Software and Website troubleshooting.
1.2 Helpdesk Support. The Client and authorized Users may submit Requests by accessing the community forums managed by the Provider at https://opendevkit.com/support/. If there are any changes to this link, the Provider shall notify the Client as indicated in the Notice section of the Agreement. Support shall be provided for troubleshooting Requests.
1.3 Support Response. Support will be made available on a reasonable basis subject to the nature of the Request and the urgency of such Request as shall be determined by the Provider in its sole discretion.
1.4 Supplemental Support. Supplemental support may be made available by the Provider, from time to time, in a manner and according to the terms more particularly specified in an Order Form.
1.5 Software Updates. During the Term, the Provider shall supply, at no extra charge, any improvements or modifications to the Software that the Provider makes generally available as a major release, minor release (e.g. releases that end in .1, .2, etc.) and any essential updates, enhances and fixes (“Updates“).