PLEASE READ THIS TERMS AND CONDITIONS OF SERVICE AGREEMENT BEFORE USING THE HOSTED SERVICES. BY ACCESSING AND USING THE SERVICE IN ANY WAY, YOU AGREE TO BE BOUND BY THIS AGREEMENT, INCLUDING THE WARRANTY DISCLAIMERS, LIMITATIONS OF LIABILITY, AND TERMINATION PROVISIONS BELOW. IF YOU DO NOT AGREE TO THE TERMS, DO NOT USE THE SERVICE.Last Modified: August 5, 2019
This Agreement is a legally binding contract between you (“Customer”) and SQBox Solutions Ltd. DBA IC Thrive (“IC”). IC provides the Service (as defined below) to you subject to and conditioned upon your acceptance of this Agreement. IC has created a proprietary [cloud-based intranet solution that provides over 100 features including document management, sub-sites, form management, and contact directories] (the “Platform”). You wish to utilize certain features of the Platform for your organization as set out in the Order Form (the “Hosted Services”) and IC wishes to provide such access to you on the terms and conditions set out below.
All capitalized terms not defined within this Agreement have the meaning ascribed to them in the Order Form which forms an essential part of this Agreement.
1. Grant of Use
Subject to the terms and conditions of this Agreement, IC grants you, during the Subscription Term, a non-exclusive, non-transferrable, and non-assignable, license, without the right to sublicense, for you to access, use, and make available to your Authorized Users to access and use, the Hosted Services. IC reserves the right to make changes, modifications, and enhancements to the Hosted Services from time to time in its sole discretion. Title to both the Platform and the Hosted Services shall remain with IC and you do not acquire any rights, title, or interest, whether express or implied, in either the Platform or the Hosted Services, including any intellectual property rights therein.
2. Hosted Services Terms
2.1 Subscription Term and Renewals.The Hosted Services are provided to you on a subscription basis for a set term as specified in your Order Form (the “Subscription Term”). Except as otherwise specified in your Order Form, the Subscription Term will automatically renew for periods equal to your initial Subscription Term unless you provide at least 45 days notice to IC prior to the end of your then-current Subscription Term of your intention to cancel your subscription by emailing firstname.lastname@example.org. If you cancel, your subscription will terminate at the end of then-current Subscription Term, and you will not be entitled to any credits or refunds for amounts accrued or paid prior to such termination.
2.2 Authorized Users.
The grant of use set out in Section 1 is intended for the number of users set out in the Order Form (the “Authorized Users”), as may be revised from time to time as set out herein.
2.3 Subscription Fee.
In consideration of the performance of this Agreement, during the Subscription Term, you shall pay IC the amount set out in the Order Form (the “Fees”).
2.4 Your Data.
“Your Data” means any data, content, code, video, images or other materials of any type that you upload, submit or otherwise transmit to or through Hosted Services. You will retain all right, title and interest in and to Your Data in the form provided to IC. Subject to the terms of this Agreement, you hereby grant to IC a non-exclusive, worldwide, royalty-free right to: a) collect, use, copy, store, transmit, modify and create derivative works of your data solely to the extent necessary to provide the applicable Hosted Service to you and; b) for Hosted Services that enable you to share your data or interact with other people, to distribute and publicly perform and display Your Data as you (or your Authorized Users) direct or enable through the Hosted Service. IC may also access your account or instance in order to respond to your support requests.
IC implements security procedures to help protect Your Data from security attacks including viruses, cancelbots, worms, time bombs, Trojan horses and other harmful, disruptive or other surreptitious or malicious components, code, files, scripts, agents programs (collectively, “Malicious Code”). However, you understand that use of the Hosted Services necessarily involves transmission of your data over networks that are not owned, operated or controlled by us, and we are not responsible for any of Your Data lost, altered, intercepted or stored across such networks. We cannot guarantee that our security procedures will be error-free, that transmissions of Your Data will always be secure or that unauthorized third parties will never be able to defeat our security measures or those of our third-party service providers.
2.6 Support and Maintenance.
IC will provide Support and Maintenance for the Hosted Services during the Subscription Term as long as your account has no outstanding balance for undisputed Fees owing. We will not access your intranet or Your Data without your authorization. Our Support and Maintenance services include: a) issue resolution subject to the terms of the IC Service Levels Agreement as specified at https://icthrive.com/resources/service-levels; b) applying patches to the customer intranet during regularly scheduled patching periods with prior emailed notice of at least 3 business days; c) and upgrading software versions with prior emailed notice of at least 6 business days. You are required to participate in regularly scheduled patching as part of your obligation to maintain currency of software; provided, that such patching occurs at commercially reasonable times. For version upgrades, IC releases a new version at least once-annually; you may elect to postpone the upgrade for either 30 or 60 days with emailed notice to IC of at least 3 business days prior to the scheduled upgrade period. At no later than 60 days after the originally scheduled version upgrade, an upgrade will automatically be performed on your intranet and no further extensions will be granted, in order for all customers to continue to remain current.
3. Customer Obligations
3.1 Security Precautions.
You agree to use industry standard security precautions in connection with your use of the Hosted Services including, where prudent, encrypting any Confidential Information transmitted to or from, or stored by, you on the servers or storage devices used by you. In addition, you agree to use commercially reasonable efforts (including industry standard anti-malware tools updated to the latest definitions) to prevent the introduction by way of Your Data into the Platform any Malicious Code. You agree to promptly notify IC upon learning that an Authorized User is acting or has acted in a manner that breaches the terms of this Agreement.
3.2 Authorized Users.
You are responsible for all activity occurring under your Authorized User accounts and shall comply with all applicable laws and regulations in connection with your use of the Services, including but not limited to those related to data privacy, international communications, the transmission of technical or personal data, and export control laws and regulations. You must ensure that all Authorized Users keep their user IDs and passwords for the Hosted Services strictly confidential and not share such information with any unauthorized person. You are responsible for any and all actions taken using your accounts and passwords, and you agree to immediately notify IC of any unauthorized use of which you become aware.
The term “Discloser” shall mean the party disclosing Confidential Information, as defined below, to the other party. The term “Recipient” shall mean the party receiving Confidential Information from the Discloser. As used in this Agreement, the term “Confidential Information” shall mean any and all information that the Discloser has furnished or is furnishing to the Recipient, whether furnished before or after the date of this Agreement, whether tangible or intangible and whatever form or medium provided, including all information generated by the Recipient that contains, reflects or is derived from the furnished information. For the avoidance of doubt, all of Your Data shall, at all times, constitute your Confidential Information.
4.2 Confidential Obligations.
Each Recipient shall, at all times, keep confidential and safeguard the Confidential Information of the Discloser and to take all reasonable precautions, and in any case the same degree of care and precautions the Recipient would take to protect the confidential nature of its own information (but not less than a commercially reasonable degree of care), not to all use, disclose, copy or reproduce any Confidential Information, except as strictly necessary to carry out its obligations under this Agreement or otherwise disseminate the Confidential Information to any person other than those employees, agents, affiliates and subcontractors who have a legitimate business reason to have such access for purposes of performing its obligations under this Agreement, and are subject to the requirement to abide by a non-disclosure agreement substantially similar to this Agreement’s non-disclosure obligations. Recipient shall promptly notify Discloser of any breach of this obligation and reasonably assist the other in connection therewith.
Recipient shall have no obligations with regard to such Confidential Information where it can establish, with documentary evidence and other than in connection with a breach of this Agreement, such information (a) was already, or becomes, known to the other without a duty of confidentiality and without direct or indirect use whatsoever of the Discloser’s Confidential Information, or (b) is, or becomes, generally available to the public rightfully without restrictions of confidentiality.
4.4 Disclosures Required by Law.
If Recipient is requested or required by law to disclose any Confidential Information, it may disclose strictly that which is required, provided that Recipient gives Discloser prompt written notice of such requirement so that Discloser may contest or restrict the disclosure, and reasonably cooperates in good faith with Discloser in Discloser’s efforts to so restrict or contest such disclosure.
4.5 Control and Management of Your Data.
You understand and acknowledge that the Hosted Services provide for the collection of information from Authorized Users and routes this information to and from Authorized Users based on selections made by you and your Authorized Users. While the Hosted Services facilitate these activities, they do not control what information is collected and to whom it is disseminated. You hereby agree, that by entering into this Agreement: (a) you are requesting IC to manage data and information on your behalf for the purpose of providing the Hosted Services to you and your Authorized Users; (b) you consider the Hosted Services to be appropriate for you and your Authorized Users’ needs; (c) that the data and information collected from Authorized Users will be disclosed to other Authorized Users, who are identified by you and the Authorized Users during the normal operation of the Hosed Services, this includes, but is not limited to, the sharing an Authorized User’s data and information with other Authorized Users; (d) that some or all of the collected data and information may be included in reports and emails generated by the Hosted Services that are utilized by you and the Authorized Users; (e) the information and data provided by you and the Authorized Users is respectfully their data and information; (f) that you and the Authorized Users are solely responsible for the content, accuracy and how the data and information is utilized, within the context and scope of the Hosted Services.
4.6 Requests for Information.
While IC will utilize commercially reasonable efforts to protect Your Data provided pursuant to this Agreement, you acknowledge and agree that, pursuant to this Agreement, IC acts only to provide a platform where you and Authorized Users input and access content for their use and IC does not manage, control, or audit any of Your Data. You, or your Authorized Users, through direct, or delegated, administration of Hosted Services and through the options and selections made by Authorized Users, ultimately control Your Data including when and to whom such data is disclosed. You shall be responsible for, and IC will have no obligation to, respond to any freedom of information requests made under applicable laws. If IC receives such a request, it shall provide written notice of the request to you and shall take no further action with regard to such requests. This provision shall survive any termination of this Agreement.
Except as expressly set out in this Agreement, no party grants to the other any right, title or interest in or to its Confidential Information. You further agree that all rights, title and interest in and to the Platform, any Hosted Services or any portion thereof, documentation related thereto, and all intellectual property rights related thereto are solely owned by IC. You shall not retain any right, title or interest in, to or associated with the Platform, or any Hosted Services or intellectual property right related thereto and shall not use, or allow to be used, any of the foregoing except as expressly agreed.
5. Financial Terms
5.1 Return Policy.
As part of our commitment to customer satisfaction, you may cancel your software subscription within 30 days of signing this Agreement for any reason and receive a refund of the amount paid which would also end your subscription to the Hosted Services.
We will provision the Hosted Services and provide appropriate login credentials to your specified administrative Authorized Users specified in your Order Form once we have received your agreement and billing detail confirmation. All deliveries under this Agreement will be electronic.
You agree to pay all Fees in accordance with each Invoice. Unless otherwise specified in your Invoice, you will pay all amounts in the funds specified at the time you receive it or as per the Payment Schedule outlined in the Order Form. Other than as expressly set forth in Section 5.1 (Return Policy) or 7.2 (Termination for Breach of this Agreement), all amounts are non-refundable, non-cancelable and non-creditable. In making payments, you acknowledge that you are not relying on future availability of the Hosted Services beyond the current Subscription Term or any Platform upgrades or feature enhancements. If you add Authorized Users during your Subscription Term, IC will not charge you for the increased number of Authorized Users for the duration of the then-current subscription.
Your payments under this Agreement exclude any taxes or duties payable in respect of the Hosted Services in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by IC, you must pay to IC the amount of such taxes or duties in addition to any fees owed under this Agreement; provided, that in all respects, IC, and not you, shall be responsible for the payment of IC's income taxes payable by it in connection with its activities.
Except as otherwise expressly permitted in this Agreement, you will not: (a) access, use, copy, or distribute the Platform in a manner that exceeds or violates any express limitation set forth in this Agreement or any applicable schedule hereto; (b) reverse engineer, decompile, disassemble, or otherwise attempt to derive the Platform or any source code thereto; (c) permit any party to access and/or use the Platform other than by persons expressly authorized in this Agreement to use to the Hosted Services; (d) use the Hosted Services in any manner that (1) that contravenes, facilitates the violation of, or violates any intellectual property rights of any person, or (2) that contravenes, facilitates the violation of, or violates any applicable law; (e) disable or circumvent any access control or related process or procedure established with respect to the Platform, or attempt to gain unauthorized access to the Platform; (f) create derivative works of the Platform; (g) access the Platform in order to build a competitive product or service, or (h) access the Platform in order to use or copy any features, functions, or Confidential Information (except for Your Data) for use in a competitive product or service.
7. Term and Termination
This Agreement is in effect for as long as you have a valid Subscription Term, unless sooner terminated as permitted in this Agreement.
7.1 Termination with Notice.
As set out in Section 2.1, you may terminate this Agreement by providing IC with at least 45 days written notice prior to the expiry of the current Subscription Term.
7.2 Termination for Breach of this Agreement.
Either party may terminate this Agreement before the expiration of the Subscription Term if the other party materially breaches any of the terms of this Agreement and does not cure the breach within thirty (30) days after written notice of the breach. Either party may also terminate the Agreement before the expiration of the Subscription Term if the other party ceases to operate, declares bankruptcy, or becomes insolvent or otherwise unable to meet its financial obligations.
7.3 No Credits or Refunds on Termination.
You may terminate this Agreement at any time with notice to IC, but you will not be entitled to any credits or refunds as a result of such convenience termination for prepaid but unused services and you will be responsible for all outstanding Fees due for the remainder of the current Subscription Term.
Once the Agreement expires or is terminated, you (and your Authorized Users) will no longer have any right to use or access the Platform or any Hosted Services, or any information or materials that we make available to you under this Agreement, including IC’s Confidential Information. You are required to delete any of the foregoing from your systems as applicable (including any third party systems operated on your behalf) and provide written certification to us that you have done so at our request. If you have terminated this Agreement but require continued access past the termination date in order to capture Your Data, you may notify IC and IC will extend your access for thirty (30) days and provide you with Your Data in a portable format that is accessible by you outside of the Hosted Services. This extension will be charged in advance at the same rate as Fees payable by you in the then-current Subscription Term and final termination will occur at the end of the thirty (30) day extension period.
7.5 Deletion of Data.
We will remove and delete Your Data thirty (30) days after the termination of your Subscription Term.
7.6 Effect of Termination.
Upon expiry of the Subscription Term or termination of this Agreement, (a) the use granted to you under Section 1 shall terminate and you shall discontinue the use of the Hosted Services; (b) each party shall comply with its obligations with respect to Confidential Information; and (c) all provisions of this Agreement that, by their nature, are intended to survive the purported or actual termination of this Agreement will so survive. Except as set out in Section 7.2, termination of this Agreement will not relieve you of your obligations to pay all Fees that have accrued or that continue to accrue pursuant to the terms of this Agreement. Except as set out in Section 5.1 and Section 7.2, termination of this Agreement will not entitle you to any reimbursement or refund of Fees paid except as expressly provided by this Agreement. You acknowledge and agree that for IC to be able to effectively provide the Hosted Services, it must make commitments of resources based on the expectation that the you are committed to utilizing the Hosted Services for the full Subscription Term and has determined its Fees accordingly. You acknowledge and agree that without this commitment, the Fees charged would be substantially higher to mitigate the associated risk. You hereby agree that upon any termination of this Agreement by you for convenience or due to your material and uncured breach, IC will continue to invoice you for the remainder of the Subscription Term and you agree to timely pay such Invoices.
7.7 Suspension of Hosted Services.
Without limiting any other remedies available to IC under this Agreement or at law, if you fail to pay any undisputed Fees as and when required under this Agreement or you fail to perform or observe any other material obligation under this Agreement, then, upon giving thirty (30) days’ notice in writing to you, IC may suspend the rights granted to you with respect to any or all of the Hosted Services.
8. Warranty and Disclaimer
The Hosted Services and the Platform are provided “as is,” and IC and its suppliers expressly disclaim any and all warranties and representations of any kind, including any warranty of non-infringement, title, fitness for a particular purpose, functionality, or merchantability, whether express, implied, or statutory. You may have other statutory rights, but the duration of statutorily required warranties, if any, shall be limited to the shortest period permitted by law. IC shall not be liable for delays, interruptions, service failures, or other problems inherent in the use of the internet and electronic communications or other systems outside the reasonable control of IC. To the maximum extent permitted by law, neither IC nor any of its third party suppliers makes any representation, warranty, or guarantee as to the reliability, timeliness, quality, suitability, truth, availability, accuracy, or completeness of any products or any content therein or generated therewith, or that: a) the use of any products will be secure, timely, uninterrupted, or error-free; b) the products will operate in combination with any other hardware, software, system, or data; c) the products will meet your requirements or expectations; d) any stored data will be accurate or reliable or that any stored data will not be lost or corrupted; d) errors or defects will be corrected; or f) the products (or any server(s) that make a hosted service available) are free of viruses or other harmful components.
9. Limitation of Liability
Neither party (nor its suppliers) shall be liable for any loss of services, lost or inaccurate data, failure of security mechanisms, interruption of business, costs of delay or any indirect, special, incidental, reliance, or consequential damages of any kind (including lost profits), regardless of the form of action, whether in contract, tort (including negligence), strict liability or otherwise, even if informed of the possibility of such damages in advance. Neither party’s aggregate monetary liability to the other shall exceed the amount actually paid by you to IC for the Hosted Services in the 12 months immediately preceding the claim. This Section shall not apply to a) either party’s express indemnification obligations set out in Section 10; or b) your breach of the Restrictions set out in Section 6 of this Agreement. To the maximum extent permitted by law, no suppliers of any third party components included in the products will be liable to you for any damages whatsoever. The parties agree that the limitations specified in this Section will survive the termination of this Agreement and apply even if any limited remedy specified in this Agreement is found to have failed of its essential purpose.
10. Indemnification Provisions
10.1 Indemnification by IC.
Subject to the terms hereof, IC shall indemnify, hold harmless and defend you, and your officers, directors, agents and employees, against any and all claims, liabilities, damages, losses, costs and expenses, including reasonable legal fees (collectively, “Losses”), arising out of or in any way connected with a claim against you: alleging (i) that the Platform, as used in accordance with this Agreement, infringes any third party copyrights, trade secrets, trademark, or intellectual properties (an “Infringement Claim”), provided that we have received from you: (A) prompt written notice of the claim (but in any event notice in sufficient time for us to respond without prejudice); (B) reasonable cooperation in the defense and investigation of the claim, including providing us a copy of the claim and all relevant evidence in your possession, custody or control; and (C) the exclusive right to control and direct the investigation, defense, and settlement (if applicable) of the claim; (ii) any gross negligence or more culpable act or omission, including fraud, recklessness and willful misconduct in connection with the performance or nonperformance of any Hosted Services or other activity actually or required to be performed by IC; (iii) IC’s breach its confidentiality obligations under this Agreement; (iv) IC’s violation of applicable law; or (v) IC’s material breach of any representation, warranty or covenant under this Agreement. In light of clause (i) of this Section, we may, at our option and in our discretion: (a) procure a subscription for your continued use of the Hosted Services in accordance with this Agreement; (b) substitute a substantially functionally similar service for the Hosted Services; or (c) terminate your right to continue using the Hosted Services and refund any prepaid amounts for the terminated portion of the Subscription Term. IC’s indemnification obligations above do not apply: (a) if the total aggregate fees received by IC with respect to your subscription to Hosted Services in the 12 month period immediately preceding the claim is less than $10,000; (b) if the Platform is modified by any party other than IC, but solely to the extent the alleged infringement is caused by such modification; (c) if the Platform is used in combination with any non-IC product, software, service, or equipment, but solely to the extent the alleged infringement is caused by such combination; (d) to unauthorized use of Platform including use of the Hosted Services by unauthorized users; (e) to any unsupported release of the Platform; or (f) if you settle or make any admissions with respect to a claim without IC’s prior written consent. This Section 10.1 states our sole liability and your exclusive remedy for any infringement of intellectual property rights in connections with any product or other items provided by IC under this Agreement.
10.2 Indemnification by You.
You shall at your own expense and subject to the limitations set forth in Section 9, defend, indemnify and hold harmless IC and any third party entity related to IC, against any Losses arising out of or relating to your material breach of this Agreement or your utilization (and/or the Authorized Users’ utilization) of the Hosted Services.
10.3 Survival of Indemnification Provisions.
The indemnification obligations contained in this Section 10 shall survive termination of this Agreement.
11. Governing Law
This Agreement is governed by the laws of the Province of British Columbia, without reference to its conflict of law principles, and the laws of Canada applicable therein. The courts of the Province of British Columbia shall be the exclusive venue for all disputes arising out of or relating to this Agreement, and each party hereby irrevocably attorns to the exclusive jurisdiction of such courts. As permitted by law, you covenant that you shall not bring or participate in any class action lawsuit against IC, its affiliates or any of their respective shareholders, directors, officers, employees or agents.
12. Publicity Rights
Subject to IC's obligations of confidentiality hereunder in all respects, with your permission, we may display your company name and logo as part of the client portfolio on our public website, or promote the customer relationship as part of the IC Thrive blog, via testimonials, case studies, articles, magazines, industry websites or e-Books. Any public promotion will only be done after receiving express written consent from you.
13. Improving Our Products
14. Changes to this Agreement.
We may update or modify this Agreement from time to time, including any referenced policies and other documents. If we modify the Agreement during your Subscription Term, the modified version will be effective upon your next renewal; provided, that IC shall notify you in writing of any material modification. In this case, if you object to the updated Agreement, as your exclusive remedy, you may choose not to renew, including cancelling any terms set to auto-renew in accordance with Section 2.1.
15. General15.1 Interpretation of this Agreement. The term “including,” or similar words or phrases, wherever used in any provision of this Agreement, means “including but without limiting the generality of any description preceding or succeeding such term.” Any rule of construction to the effect that any ambiguity is to be resolved against the drafting party shall not be applicable in the construction or interpretation of this Agreement. The division of this Agreement into sections/paragraphs and the insertion of headings/captions are for the convenience of reference only and shall not affect the construction or interpretation of this Agreement or be deemed a part of this Agreement. Any reference to a corporate or business entity includes and is also a reference to any corporate or business entity that is a successor to such entity.
15.2 Inurement. The rights and liabilities of both you and IC under this Agreement shall bind and inure to the benefit of your and IC’s respective successors, executors, and administrators, as the case may be.
15.3 Assignment. Neither party may assign this Agreement without the written consent of the other, except that IC may assign without consent to a related entity or the successor of all or substantially all of the assignor’s business or assets to which this Agreement relates.
15.4 Relationship of the Parties. This Agreement does not create any joint venture, partnership, agency, or employment relationship between the parties. Neither party shall have any right or authority to assume or create any obligation on behalf of the other, except as may be expressly provided herein.
15.5 Force Majeure. Notwithstanding anything to the contrary contained in this Agreement, IC will not be liable for any failure or delay in the performance of its obligations under this Agreement arising out of or caused by, directly or indirectly, forces beyond IC’s control, including, without limitation, catastrophes or acts of God, acts of war or terrorism, changes in applicable laws or regulations, strikes, work stoppages, loss of key employees, interruptions, loss or malfunction of utilities or communication services, it being understood that IC will use commercially reasonable efforts to resume performance as soon as practicable under the circumstances.
15.6 Severability. If any provision or portion of this Agreement is found by a court of competent jurisdiction to be unenforceable for any reason, the remainder of this Agreement shall continue in full force and effect.
15.7 Injunction. The parties acknowledge and agree that money damages are not an adequate remedy for a breach or threatened breach of the Restrictions set out in Section 6 and the Confidentiality obligations set out in Section 4. The parties, therefore, agree that in addition to other remedies available hereunder, by law or otherwise, the parties shall be entitled to an injunction against any such breach by the other party.
15.8 Counterparts. This Agreement may be executed in any number of counterparts and by the parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same agreement.
15.9 Notices. Notice to Customer: Any notice to you from IC must be in writing, email, registered postal service (postage prepaid), or by pre-paid commercial courier delivered to the Customer at the address listed on your account. Notice to IC: Any notices to IC from you must be in writing, email, registered postal service (postage prepaid), or by pre-paid commercial courier delivered to the address listed on our website at intranetconnections.com/contact.
15.10 Complete Agreement. This Agreement constitutes the complete understanding and agreement between you and IC. Except when expressly agreed to the contrary in signed writing by an authorized representative of IC, this Agreement supersedes any other written (including digitized/computerized) agreement, oral agreement, and/or agreement by conduct. This Agreement or any other specific agreement for the Hosted Services between you and IC shall each be exclusively between you and IC only and shall not confer any rights on any third party.