Effective for Clients Signed With Irwin Prior to November 30th, 2023.
(a) Description. These Terms of Service set forth the terms and conditions that
govern the provision and use of the Services described in the Order Form for such
Services.
(b) Definitions. Capitalized terms used herein are defined in Section 21 or
elsewhere herein.
(c) Scope. Each Order Form sets out the Services to be provided as of the Effective
Date by Platform Group to the Customer. Additional Services that are offered as
add-ons after the Effective Date may only be added pursuant to an amendment to the
Order Form as provided for therein and may be subject to additional fees and
restrictions.
(d) Content of these Terms of Service. These Terms of Service will be subject to
and incorporate by reference the provisions of the corresponding Order Form.
(a) Payments. The Customer will pay Platform Group the Fees in accordance with
the applicable Order Form. Unless otherwise provided therein, all Fees will be payable
within thirty (30) days of receipt of such invoice. All Fees will be payable in U.S.
dollars, unless otherwise provided in the applicable Order Form. After the Order Term,
and at the beginning of each Renewal Term thereafter, the Fees for such upcoming
Renewal Term may be revised to reflect Platform Group’s then-current fees for the
Services. Any changes to the Fees for a Renewal Term will be communicated to the
Customer at least thirty (30) days prior to the Renewal Term. Notwithstanding the
foregoing, Platform Group reserves the right to increase the Fees for each Renewal
Term, without notice to the Customer, by a percentage equal to the greater of the
percentage increase in the Consumer Price Index for the immediately preceding 12
month period, or 5%.
(b) Late Payment. All Fees not paid when due shall accrue interest at 12% per
annum or at the maximum rate allowed under applicable law, if such rate is lower, and
may result in suspension of the Customer’s ability to access the Service until payment is
made.
(c) Taxes. All Fees for the Services or any Fees related to the Services are exclusive
of sales, use, withholding, and value added taxes (“Taxes”) that are eligible on the
provision of any such Services and the Customer will be required to pay all such Taxes
in addition to the Fees. If the Customer is required by applicable Law to withhold any
Taxes in connection with amounts due hereunder, the Customer will notify Platform
Group thereof and promptly pay Platform Group any additional amounts such that the
net amount that Platform Group receives, after any withholding, equals the amount that
would have otherwise been due prior thereto. The Customer will provide Platform
Group with documentation substantiating such payments and, upon Platform Group’s
request, any other information or documentation reasonably requested by Platform
Group to assess and comply with its tax obligations under applicable Law. If Platform
Group is required to remit any Taxes on behalf of the Customer, the Customer will
reimburse Platform Group upon notice thereof. The Customer will provide Platform
Group with any applicable tax exemption certificates prior to such reimbursement.
(d) Expenses. The Customer will reimburse Platform Group for all Expenses
incurred by Platform Group, as described in the applicable Order Form.
(e) Past Due Amounts. All past due Fees will be payable by the Customer to
Platform Group in accordance with the terms of the Order Form. The Customer is
responsible, and will indemnify Platform Group, for all costs and fees incurred by
Platform Group in collecting unpaid Fees, including collection fees and attorney’s fees
and court costs. The Customer will make all payments without asserting any right of
withholding, deduction, or set-off. All Fees are non-refundable unless otherwise
expressly provided herein.
(f) Service Credit. The Customer may be entitled to a Service Credit in the event
Platform Group does not meet the Service Level, as more particularly described in the
Service Level Agreement. Any approved Service Credit shall be applied against the
Fees in the manner described in the Service Level Agreement.
(a) Access to the Services. Subject to Customer’s and each Permitted User’s
compliance with the Agreement (including payment of applicable Fees in full), Platform
Group will use commercially reasonable efforts to make available the Services to the
Customer and its Permitted Users for use expressly as permitted herein and in the
applicable Order Form. Except as otherwise expressly provided for in an applicable
Order Form, the Customer and its Permitted Users may access and use the Services
solely for the Customer’s internal business purposes in the manner permitted in the
applicable Order Form.
(b) Unauthorized Access. The Customer will implement, enforce, monitor, and
maintain security measures to prevent unauthorized access to or use of any Services or
Derived Content, and will notify Platform Group promptly of any such unauthorized
access or use. The Customer will be fully responsible for any such unauthorized access
or use. The Customer will cooperate with Platform Group to remedy any such
unauthorized use to Platform Group’s reasonable satisfaction and, at the request of
Platform Group, will pay Platform Group, as minimum compensation and not as
liquidated damages or a penalty, all Fees that would have been attributable to such
unauthorized user if such Person were a Permitted User.
(c) Use Restrictions. Except as expressly permitted herein or in an applicable Order
Form, the Customer and its Permitted Users will not (directly or indirectly, knowingly
or unknowingly): (i) sell, publish, transmit, distribute, encumber, rent, lease or
otherwise permit any Person to access or use (other than a Permitted User) any Services
(including any Data or Reports) or Derived Content in any manner; (ii) alter, remove,
obscure, or fail to reproduce any rights notices contained in the Services (including any
Data or Reports) or required herein or in the applicable Order Form; (iii) use the
Services (including any Data or Reports), any Derived Content or information obtained
from the Database to create or update the Customer’s own internal database or to
modify any database or any service or product related to data or that could be
competitive with or a substitute for any portion of the Services; or (iv) use Data to
create investor profiles for external distribution or in a manner other than in accordance
with the use restrictions set out herein or the applicable Order Form for the Services.
Additionally, the Customer and its Permitted Users will not (directly or indirectly,
knowingly or unknowingly): (A) reverse engineer, decompile, decrypt, disassemble,
modify, copy, display, translate, or create derivative works based on, or circumvent or
disable any security or technological measures of, any Services (including any Data or
Reports) or Derived Content; (B) print, download, or export any Data other than as
permitted by any licensed features of the applicable Services; or in any manner that
exceeds any limitations set forth in the applicable Order Form; or (C) create a “local”
copy of any portion of the Database on any computer, system or otherwise, or take
screen shots of or otherwise detail the appearance or functionality of any of the Services
to or for any competitor of Platform Group.
(d) Derived Content. Notwithstanding anything herein to the contrary, the
Customer is permitted to prepare Derived Content from the Reports provided pursuant
to the Services, and subject to the restrictions contained herein and in the applicable
Order Form hereto. The Customer may use portions of the Data for its internal use,
including but not limited to sharing such Derived Content with: the Customer’s
executive level employees who are subject to confidentiality obligations no less
restrictive than those contained herein and in the applicable Order Form hereto; and
outside attorneys, accountants, consultants, and advisors who have agreed to keep such
derivative works in confidence and are subject to confidentiality obligations no less
restrictive than those contained herein and in the applicable Order Form.
(e) Restrictions on Access. Only Permitted Users may access and use the Services.
If the applicable Order Form restricts access to or use of some or all of the Services to
named Permitted Users or limits the total number of Permitted Users, then only such
named Permitted Users or number of Permitted Users, respectively, may access and use
such Services at any given time. The Customer will ensure that its Permitted Users and
other personnel comply with all provisions set out herein and in the applicable Order
Form that are applicable to the Customer or Permitted Users. The Customer and its
Permitted Users may only access the Services as provided in the applicable Order Form.
(f) Registration. Access to Services may require registration of a computer or other
electronic device prior to any access to or use of such Services. The Customer will
comply with any such registration requirements for such Services. If Platform Group
provides access credentials (including passwords, user names, and other similar
information) (“Access Credentials”) for access to any Services, the Customer and the
applicable Permitted User will treat such information as strictly confidential and not
permit any other Person to access the Services using such Access Credentials. A
Permitted User may only access and use such Services using the Access Credentials
provided for such Permitted User. The Customer will implement, enforce, monitor, and
maintain security measures to prevent unauthorized use of the Access Credentials, and
will notify Platform Group promptly of any unauthorized use thereof.
(g) Site Policies. If the Services require access to a website, application or other
interface (“Site”), the Customer and its Permitted Users are responsible for reading all
privacy policies, including the Privacy Policy, and terms of use for the applicable Site
(as modified from time to time, the “Site Policies”) prior to using such Services and
otherwise during the applicable Order Term or Renewal Term. The Customer and its
Permitted Users will comply with the Site Policies. Revised Site Policies may be posted
or issued from time to time. The continued access to or use of the Services by the
Customer or any Permitted User constitutes their assent to any posted or issued Site
Policies.
(h) Uploaded Information. Subject to and only as permitted in the Site Policies,
during the applicable Order Term or Renewal Term, the Customer may upload, through
a Permitted User, the Customer’s own information to be used in the Services
(“Uploaded Information”). If permitted, the Customer will only upload information
for which it has the necessary rights and in accordance with applicable Law. Platform
Group will not be responsible to the Customer for its accuracy or collection or use in
compliance with applicable Law. The Customer hereby grants Platform Group, its
Affiliates and their third-party providers a royalty-free, perpetual, worldwide,
irrevocable, sublicensable, and transferable license to use the Customer Data and any
other Data, materials, or other Intellectual Property of the Customer related thereto in
order for Platform Group to provide the Services to the Customer and to review such
information for the purpose of resolving a problem, addressing a support issue, or
addressing a suspected violation of the provisions set out herein or in the applicable
Order Form or Site Policies, provided that Platform Group will not sell or otherwise
commercially exploit the Customer Data. At the expiration or termination of the
Agreement, upon request by the Customer made within 30 days after the effective date
of termination, Platform Group will make available to the Customer a file of the
Customer Data in the native database format along with attachments in their native
format.
(i) Usage Data. In the course of providing the Customer with the Services,
Platform Group may also collect, use, process, and store usage data in order to create
and compile anonymized and aggregated statistics about the Services. For details on
this, see Platform Group’s Privacy Policy.
(j) Modifications. Except as otherwise specified in any applicable Order Form,
Platform Group may change the appearance, content, format, medium, means of access
to, or delivery of any Services from time to time, including as required to comply with
the requirements of third-party providers and applicable Law.
(k) Improvements and Maintenance. Platform Group will provide the Customer
with improvements to the Services when it makes such improvements generally
available to its other customers subject to the terms of the Order Form. Customer
acknowledges that certain maintenance activities regarding the Services may be
necessary or appropriate from time to time, including bug fixes, software updates,
feature updates, and the addition of new features. In most instances, improvements
and/or maintenance may be implemented without the need to interrupt the Services.
Where such maintenance activities are not reasonably anticipated to materially impact
the Customer’s use of the Services, Platform Group will not be required to provide
notice to the Customer regarding such maintenance activities. If Platform Group
determines maintenance activities will require prolonged unavailability, Platform Group
will endeavor to provide seven days' advance notice of the same. Platform Group will
use commercially reasonable efforts to perform routine scheduled maintenance and
improvements during non-business hours.
(l) Implementation. Except as otherwise expressly provided in the applicable
Order Form, the Customer will be solely responsible for obtaining and maintaining all
equipment, software (including current, validly licensed web browsers and other
third-party applications), devices, Internet access, and other connectivity necessary to
access and use the Services. Except as otherwise expressly provided in any applicable
Order Form, Platform Group will have no obligation to provide or maintain any of the
foregoing.
(a) Platform Group will use commercially reasonable efforts to perform the
Professional Services, if any, set out in the applicable Order Form.
(a) Platform Group Property. The Customer acknowledges and agrees that
Platform Group is the sole owner of the Platform Group Property, subject to any
applicable rights of Platform Group’s third-party providers in third-party content
provided in connection therewith. The Customer further acknowledges and agrees that
the Services (including Data) are trade secrets of Platform Group and that the measures
taken to maintain their confidentiality are reasonable under the circumstances. Platform
Group Property provided by Platform Group is made available, not sold, by Platform
Group to the Customer, and nothing contained herein or the applicable Order Form
related to the Services will be interpreted or construed as a sale or purchase of such
Services or Platform Group Property. The Customer, on behalf of itself and its Permitted
Users, assigns all of their rights, if any, in and to Platform Group Property to Platform
Group and waives all related moral rights. Upon Platform Group’s request, the
Customer will execute and deliver all documentation necessary to effect or record the
foregoing assignment. Other than the limited, non-exclusive, license granted pursuant to
Section 3, no rights are granted to the Customer or any Permitted Users, and Platform
Group reserves all rights in and to the Platform Group Property.
(b) Reverse Engineer; use by Third-Parties. The Customer will not reverse
engineer, disassemble, decompile or determine the composition of the Platform Group
Property (or attempt to do any of the foregoing) or make or use any derivatives or
modifications of the Platform Group Property. The Customer (and its Affiliates) will not
sell, transfer, assign, disclose or otherwise provide access to the Platform Group
Property to any third-party.
(c) Notice of Rights. The Customer will preserve and reproduce any and all rights
notices in connection with its use of any Platform Group Property, as directed by
Platform Group or as otherwise required to preserve all rights therein under applicable
Law.
(a) Provision of Services. Platform Group will use commercially reasonable efforts
to provide the Services in a professional and workmanlike manner in accordance with
commercially reasonable industry standards for similar Services and as more
particularly described in the Service Level Agreement.
(b) Compliance with Specifications. Platform Group will use commercially
reasonable efforts to ensure that all Services are provided in accordance with any
specifications set forth in the applicable Order Form.
(a) Access to Premises. If required to provide the Services, the Customer will
provide Platform Group with reasonable access to the Customer’s premises during
normal business hours. The Customer will reasonably cooperate with Platform Group
during such access. Platform Group will instruct its personnel to, during such access,
comply with any reasonable policies and procedures of the Customer that are provided
in advance that relate to the Services to be performed thereon and that apply to all of the
Customer’s service providers performing similar services.
(b) Provision of Data. The Customer will be solely responsible for promptly
providing all information, approvals, authorizations or data needed from the Customer
for Platform Group to provide the Services, as well as all information or data needed
from the Customer for the Customer to use the Services and data and information
uploaded by the Customer into any Services. The Customer will be responsible and
liable for the accuracy and completeness of all such data and information, including any
Uploaded Information, and Platform Group will be entitled to rely on the same. The
Customer will also be responsible for: (i) ensuring that all data and Uploaded
Information or any information provided by the Customer or its Permitted Users comply
with applicable Law; and (ii) obtaining all necessary rights to upload, use, and provide
the foregoing.
(c) Compliance Confirmation. Upon Platform Group’s request, the Customer will
certify its and its Permitted Users’ compliance with the provisions herein and in the
applicable Order Form, including post-termination requirements. Upon reasonable
notice during the Order Term or Renewal Term and one (1) year thereafter, Platform
Group and its representatives may request documentation from the Customer and enter
the Customer’s premises to perform a reasonable audit and inspection (including
inspecting the Customer’s systems) to verify compliance with the provisions set out
herein and the applicable Order Form for the particular Services. Without limiting
Platform Group’s other rights or remedies, in the event Platform Group detects any
non-compliance with the Agreement applicable to the Customer or any portion thereof
by the Customer or any Permitted User, any underpayment of amounts owed to
Platform Group pursuant to the underlying Order Form or any other unauthorized use of
the Services or Derived Content, the Customer will be solely responsible, and will
reimburse Platform Group for all costs and Expenses incurred by Platform Group in
connection with any such audit or inspection. In addition, if Platform Group is to bring
any action or suit to enforce the Customer’s obligations under the Agreement or to
pursue any remedies that Platform Group may have for the Customer’s violation of such
Agreement, Platform Group will be entitled to recover from the Customer, in addition to
any other rights and remedies it may have, all reasonable expenses and attorneys’ fees
for such suit or enforcement.
(d) Compliance with Law. The Customer and its Permitted Users will use the
Services and Derived Content in compliance with all applicable Law. Without limiting
the foregoing, the Customer and its Permitted Users will not: (i) use the Services to
store or transmit libelous, infringing, unlawful, or tortious material or material in
violation of third-party rights; (ii) use the Services (including any Data or Reports) or
Derived Content for the purpose of serving as a factor in establishing an individual’s
eligibility or suitability for credit, employment, or insurance, or in any way that would
cause the Services to be construed as a “consumer report”; (iii) transmit, provide access
to, or display any Data, Reports, or Derived Content to any Person that the Customer or
any Permitted User knows would engage in unfair or deceptive practices using such
Data or Reports; (iv) use the Services (including any Data or Reports) or Derived
Content in violation of any Law concerning unsolicited messages or communications,
including the national law that implements Canada’s Anti-Spam Legislation, European
Union General Data Protection Regulation and the U.S. CAN-SPAM Act; (v) use the
Services to store or transmit harmful or malicious code or devices; (vi) interfere with or
disrupt the integrity or performance of the Services or related systems; (vii) bypass or
breach any security device or protection used by the Services or Platform Group or
access or use the Services other than through the use of then valid Access Credentials;
or (viii) interfere with another customer’s use of the Services.
(a) Personnel. Platform Group and the Customer each will be solely responsible for
the control and supervision of their respective employees and subcontractors, if any.
(b) Data Security. Platform Group will maintain, in accordance with applicable
industry standards, an information security program and safeguards designed to prevent
the unauthorized disclosure or misuse of the Customer’s Personal Information. In the
event that Platform Group learns that there has been unauthorized access to or
unauthorized acquisition or misuse of the Customer’s Personal Information on Platform
Group’s systems or premises (a “Security Event”), Platform Group will promptly give
notice of such Security Event to the Customer, unless prohibited by Law. Upon the
occurrence of a Security Event, Platform Group will: (i) promptly take such steps it
reasonably deems appropriate to contain and control the Security Event to prevent
further unauthorized access to or misuse of the Customer’s Personal Information, as
applicable; and (ii) unless prohibited by Law, continue to provide periodic updates
relating to the investigation and resolution of the Security Event to the Customer until it
has been resolved. Unless prohibited by Law, and subject to the other provisions herein,
Platform Group will, upon reasonable request, cooperate with the Customer in
investigating each Security Event, including providing reasonably requested
information regarding the nature, investigation, or resolution thereof. If required by
Law, the Customer shall be responsible for notifying any affected individuals of a
Security Event, within any prescribed timelines.
(c) Customer’s Acts or Omissions. If Platform Group’s performance of its
obligations under the Agreement is prevented or delayed by any act or omission of the
Customer, Platform Group shall not be deemed in breach of its obligations under the
Agreement or otherwise liable for any costs, charges or losses sustained or incurred by
the Customer, in each case, to the extent arising directly or indirectly from such
prevention or delay.
Each Party hereby represents and warrants to the other Party that:
(a) it is duly organized, validly existing, and in good standing as the business entity
under the Laws of its jurisdiction of organization;
(b) it has the full right, power, and authority to enter into the Agreement and to
perform its obligations under the Agreement;
(c) the Agreement is a legal, valid and binding obligation of such Party, enforceable
against such Party in accordance with its provisions, subject to applicable bankruptcy,
insolvency, reorganization, arrangement, moratorium, or other similar laws relating to
creditors’ rights generally; and
(d) there are no government orders or existing agreements or arrangements with
third parties, the terms of which prevent it from entering into this Agreement.
(a) Term. The term of the Agreement will begin on the Effective Date and will
continue in effect until the last date of the Order Term and will automatically renew for
the same length of term, unless otherwise terminated upon 30 days’ written notice prior
to the termination of the current term (each a “Renewal Term”).
(b) Termination for Cause by Platform Group. Platform Group may terminate the
Agreement immediately upon written notice if: (i) the Customer or any Permitted User
breaches the Agreement and such breach is incurable or, if curable, the breach is not
cured within thirty (30) days of the Customer’s receipt of notice specifying the breach;
(ii) the Customer becomes the subject of a petition in bankruptcy or any other
proceeding relating to insolvency, receivership, liquidation, or assignment for the
benefit of creditors or otherwise ceases to conduct its business as conducted as of the
Effective Date; (iii) in the event of any verbal or written abuse (including threats of
abuse or retribution) by an Customer directed towards any Platform Group employee or
officer.
(c) Termination for Cause by the Customer. The Customer may terminate the
Agreement immediately upon written notice if Platform Group materially breaches the
Agreement, and such breach has not been cured within thirty (30) days of Platform
Group’s receipt of notice specifying the breach. If the Agreement is duly terminated
pursuant to the forgoing provision, Platform Group will refund any portion of the Fees
that the Customer has pre-paid for the applicable Services to be provided after the
effective date of termination, subject to deduction of any amounts then unpaid and due
to Platform Group.
(d) Service Discontinuance. Platform Group will provide at least sixty (60) days’
advance notice if it intends to discontinue the Services. Subject to the foregoing,
Platform Group will have the right to terminate the Agreement or any portion of the
Order Form immediately upon written notice if any applicable Service is discontinued.
Notwithstanding the foregoing provisions, Platform Group may also terminate the
Agreement immediately in the event of: (i) any change in a material contractual
requirement imposed by a third-party provider; (ii) the termination or expiration of any
applicable contract with a third-party provider; or (iii) any other discontinuance or
termination of any third-party content, service or product by a third-party provider.
Platform Group will use commercially reasonable efforts to give the Customer as much
written notice as possible in such circumstances, but such notice may not be possible in
all cases. In either of the foregoing cases, Platform Group will refund any portion of the
Fees that the Customer has pre-paid for terminated Services that were to be provided
after the effective date of termination, subject to deduction of any amounts then unpaid
and due to Platform Group. Platform Group will thereafter have no further obligation or
liability with respect to the terminated Agreement.
(e) Suspension of Services. Upon any breach of the Agreement by the Customer or
any Permitted User, Platform Group may immediately suspend access to any portion of
the applicable Services until any cure thereof to Platform Group’s satisfaction. Upon
receipt of any Customer notice of non-renewal of any portion of the Order Form,
Platform Group may discontinue the Customer’s and its Permitted Users’ access to any
features in the applicable Services that permit the exporting, downloading, or other
transfer of Data.
(f) Effect of Termination.
(i) Termination of Agreement or Portions of the Order
Form. Unless otherwise set forth in the applicable Order Form, upon expiration
or termination of the Agreement, the Customer and Platform Group each will
otherwise return (as requested by the other Party), or otherwise permanently
delete or destroy all Confidential Information of the other Party in its possession
or control, except as otherwise expressly permitted under the portion of the
Order Form remaining in effect, provided that each Party may retain one (1)
copy of Confidential Information as required by Law, which will remain subject
to the restrictions herein. The expiration or termination of the Agreement will
not affect any obligations of the Customer to pay Platform Group any unpaid
amounts then due. Upon termination of the Agreement, the Customer’s access to
the Services will immediately cease. Notwithstanding anything in this Section
10(f)(i), the Customer will have the right: (A) to copy, archive and store Reports
for internal recordkeeping purposes after the termination of the Agreement; and
(B) if the Customer is in compliance with the terms of the Agreement, to use any
Report after the termination of these Terms of Service in accordance with the
terms hereof and thereof.
(ii) Survival. Sections 2, 3(b), 5(a), 7(c), 7(d), 10(d), 11, 12,
13, 14, 17, 18, 19, 20, and 21 will survive expiration or termination of the
Agreement. The confidentiality obligations will survive for an indefinite period
of time after the expiration or termination of the Agreement.
(a) Confidentiality Obligations. Each Party agrees that it will maintain in
confidence the other Party’s Confidential Information. Except as required to provide the
Services or expressly permitted herein or in the applicable Order Form, neither Party
will disclose the other Party’s Confidential Information to any other Person without the
other Party’s prior written consent. Neither Party will use or reproduce the other Party’s
Confidential Information except as required to provide the Services or expressly
permitted herein or in the applicable Order Form. Each Party will use at least the same
degree of care (including commercially reasonable physical and electronic security
measures) to maintain the confidentiality of the other Party’s Confidential Information.
Notwithstanding the foregoing, Platform Group may disclose the provisions of the
Agreement as necessary to enforce its rights hereunder and thereunder, as permitted
under section 16 herein, and, on a confidential basis, to its legal and financial advisors
and potential investors, acquirers, lenders, and business partners.
(b) Disclosures Required by Law. If disclosure of the other Party’s Confidential
Information is required by Law: (i) the disclosure will extend only to information for
which disclosure is so required; (ii) the Party making such disclosure will (to the extent
permitted by Law) promptly and before disclosure notify the other Party of the proposed
disclosure; (iii) the Party making such disclosure will use reasonable efforts to seek
confidential treatment of the information by the recipient of the information to be
disclosed; and (iv) no such information will otherwise be divested of its status, either
retroactively or thereafter, as Confidential Information except to the extent such
information qualifies under clauses (i) or (ii) above.
(c) Breach of Confidentiality. Immediately upon becoming aware of any breach of
confidence by any Person to whom a Party discloses all or any part of the other Party’s
Confidential Information (the "Affected Party"), the Party aware of such breach shall
immediately notify the Affected Party and will give the Affected Party all reasonable
assistance in connection with any proceedings which the Affected Party may institute
against such Person as a result of such breach of confidence.
(a) Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 6(a) OR
6(b) HEREIN OR IN THE APPLICABLE ORDER FORM, THE SERVICES ARE
PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY REPRESENTATION
OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY,
OR OTHERWISE, AND PLATFORM GROUP AND ITS THIRD-PARTY
PROVIDERS SPECIFICALLY DISCLAIM ALL IMPLIED WARRANTIES,
INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT TO THE
MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. EXCEPT AS
EXPRESSLY PROVIDED HEREIN OR IN THE APPLICABLE ORDER FORM,
PLATFORM GROUP AND ITS THIRD-PARTY PROVIDERS DO NOT
REPRESENT OR WARRANT AS TO THE COMPLETENESS OR ACCURACY OF
ANY DATA OR REPORTS OR THAT THE SERVICES WILL BE
UNINTERRUPTED, CURRENT, OR ERROR-FREE OR THAT THEY WILL BE
AVAILABLE CONTINUOUSLY OR AT ANY PARTICULAR TIME. THE SERVICES
(INCLUDING DATA AND REPORTS) ARE NOT AND SHOULD NOT BE
CONSTRUED AS PROVIDING TAX, LEGAL, INVESTMENT, OR ACCOUNTING
ADVICE. NO PORTION OF THE SERVICES CONSTITUTES A
RECOMMENDATION OR OPINION TO BUY OR SELL ANY PRODUCT,
INCLUDING SECURITIES, OR TO PARTICIPATE IN ANY TRANSACTION. THE
CUSTOMER ASSUMES ALL RESPONSIBILITY FOR DETERMINING WHETHER
THE SERVICES OR THE INFORMATION GENERATED THEREBY IS
ACCURATE OR SUFFICIENT FOR THE CUSTOMER’S PURPOSE.
(b) Third-Party Content. The Services may include access to third-party content,
which may be governed by additional terms and conditions. In some instances,
third-party providers may require the Customer and its Permitted Users to agree to
additional terms and conditions that are not set forth in the Agreement prior to accessing
or using such third-party content. Unless otherwise provided in the Order Form,
Platform Group may modify such portion of the Order Form in its sole discretion as
required to provide third-party content as part of the Services. The Customer and its
Permitted Users will comply with all requirements of third-party providers applicable to
the Services received. NOTWITHSTANDING ANYTHING TO THE CONTRARY
HEREIN, PLATFORM GROUP IS NOT RESPONSIBLE FOR ANY THIRD-PARTY
CONTENT PROVIDED THROUGH THE SERVICES AND WILL HAVE NO
LIABILITY OR OBLIGATIONS WITH RESPECT TO SUCH CONTENT.
(c) Limitation of Liability. TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW, IN NO EVENT WILL PLATFORM GROUP, OR ITS
AFFILIATES OR THEIR RESPECTIVE THIRD-PARTY PROVIDERS, OR THEIR
RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, MEMBERS,
EMPLOYEES, AGENTS, PARTNERS, SUCCESSORS, OR ASSIGNS BE LIABLE
TO THE CUSTOMER, ANY PERMITTED USERS, OR ANY OTHER PERSON
RELATED TO OR AFFILIATED WITH THE CUSTOMER OR, AS APPLICABLE,
ANY PERMITTED USER FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL,
PUNITIVE, EXEMPLARY, OR INCIDENTAL DAMAGES (INCLUDING, AS
APPLICABLE, LOST PROFITS) ARISING FROM OR RELATING TO THE
AGREEMENT, ANY APPLICABLE ORDER FORM OR THE SERVICES,
WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED ON WARRANTY,
CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR
OTHERWISE, EVEN IF A REPRESENTATIVE OF PLATFORM GROUP IS
ADVISED IN ADVANCE OF THE POSSIBILITY OR LIKELIHOOD OF THE
SAME. THE CUSTOMER AGREES THAT PLATFORM GROUP, PLATFORM
GROUP’S AFFILIATES, AND THIRD-PARTY PROVIDERS’ MAXIMUM
AGGREGATE LIABILITY OF ANY KIND ARISING UNDER OR RELATING TO
THE AGREEMENT, THE APPLICABLE ORDER FORM, OR THE APPLICABLE
SERVICES, UNDER ANY THEORY OF LIABILITY, INCLUDING CONTRACT,
TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE,
WILL BE THE TOTAL AMOUNT OF FEES THAT THE CUSTOMER HAS PAID TO
PLATFORM GROUP FOR THE SERVICES UNDER THE APPLICABLE ORDER
FORM IN THE SIX (6) MONTHS PRECEDING THE ACT GIVING RISE TO A
CLAIM, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.
(a) Indemnification by Platform Group. Subject to Sections 13(b) and 13(f)
Platform Group will defend, indemnify and hold harmless the Customer and its
directors, officers, employees, and agents from any third-party claim, action, or other
proceeding (“Claim”) alleging that the Customer’s use of the Services infringes or
otherwise violates any third-party patent rights when used in accordance with the
Agreement or any other user guide or documentation made available by Platform
Group.
(b) Limitation of Indemnity. Notwithstanding Section 13(a), Platform Group will
not indemnify any Person for any Claims, damages, costs, expenses, or amounts, in each
case, to the extent that they result from:
(i) the use of any portion of the Services other than as
permitted hereunder or otherwise in violation of the Agreement or applicable
Order Form;
(ii) the modification of the Services by any Person other than
Platform Group;
(iii) the use of any portion of the Services in a combination
with products, services, or other materials in a manner not expressly permitted in
writing by Platform Group; or
(iv) Platform Group’s compliance with the directions,
instructions, or specifications of the Customer or any Permitted User.
(c) Exclusive Remedy. The Customer agrees that Sections 13(a) and 13(d) are its
sole and exclusive remedy with respect to any alleged or actual infringement of any
Intellectual Property rights resulting from the use of the Services pursuant to the
corresponding Order Form.
(d) Third-Party Infringement. If Platform Group determines that the use of any
Services or any portion thereof likely infringes or otherwise violates a third-party’s
Intellectual Property rights, Platform Group may, in its sole discretion: (i) obtain the
right for the Customer and its Permitted Users to continue using the allegedly infringing
portion of the Services; (ii) modify such portion of the Services to make use of the
Services non-infringing; (iii) replace such portion with a substantially similar
non-infringing service or product; or (iv) terminate the Agreement or portion thereof
affected, subject to a refund of any Fees pre-paid by the Customer for terminated
Services that were to be provided after the effective date of termination (after deduction
of any amounts then unpaid and due to Platform Group).
(e) Indemnification by the Customer. Subject to Section 13(f), the Customer will
defend, indemnify and hold harmless Platform Group, its Affiliates, their third-party
providers, and their respective directors, officers, employees and agents from any
third-party Claim arising out of or relating to: (A) any responsibility of the Customer
under the Agreement, including Taxes and other amounts for which the Customer is
responsible or has agreed to indemnify Platform Group or its Affiliates; (B) any data,
information, or other materials provided by the Customer or its Permitted Users, any
other Intellectual Property of the Customer, or any compliance with directions,
instructions, or specifications of the Customer or any Permitted User; or (C) any access
to or use of the Services (including any Data or Reports) or any Derived Content, or any
actual or alleged violation of applicable Law or third-party rights, by the Customer, its
Permitted Users, or anyone gaining access to the Services provided to the Customer or
Derived Content (except to the extent arising out of any access thereto or use thereof in
full compliance with the Agreement).
(f) Notification and Defense of Claims. The Person seeking defense or
indemnification from a Party pursuant to the above provisions will, as a condition to
such Party’s obligations: (i) provide such Party with prompt written notice of the
applicable Claim; (ii) grant such Party full and complete control over the defense and
settlement of the Claim; (iii) provide assistance in connection with the defense and
settlement of the Claim as such Party may reasonably request; (iv) comply with any
settlement or court order made in connection with the Claim; and (v) not defend or
settle the Claim without such Party’s prior written consent. The Person seeking defense
or indemnification will have the right to participate in the defense of the Claim at its
own expense and with counsel of its own choosing, but the Party obligated to defend or
indemnify will have sole control over the defense and settlement of the Claim.
Notwithstanding the foregoing, the indemnifying Party will not have the right to bind
the indemnified Person to any settlement or other agreement without its prior written
consent, which consent will not be unreasonably withheld or delayed.
Customer may not assign or transfer any of its rights or obligations under the Agreement
in whole or in part without the express prior written consent of Platform Group. In the event that
Customer undergoes a Change of Control, Customer shall provide at least thirty (30) days prior
written notice to Platform Group of such Change of Control. The Agreement will enure to the
benefit of, and be binding upon, each Party’s permitted successors or assigns (and for further
clarity, in the event of Customer Change of Control, Customer or the
acquiror/transferee/successor, as applicable). Platform Group may assign the Agreement in
connection with the sale of all, or substantially all, of its assets or business. Any attempted
violation of this Section 14 shall be null and void in all respects, and the assigning Party shall be
liable to the other Party for all damages incurred by such other Party as a result of such attempted
assignment.
If either Party fails to perform any obligations under the Agreement as a result of strikes,
lockouts, labor disputes, embargoes, acts of God, loss of utilities or Internet connectivity,
inability to obtain labor, materials, or reasonable substitutes, judicial orders, epidemic, war or
other governmental actions or restrictions, civil commotion, acts of terrorism, fire or other
casualty, or any other cause beyond the reasonable control of such Party, then such Party’s
performance will be excused for a period equal to the period of such cause, and such Party will
not be deemed to be in breach of the Agreement during such time.
Neither Party will issue or release any announcement, press release, or other publicity or
marketing materials relating to the Agreement or portion of the applicable Order Form, or
otherwise use the other Party’s trademarks without the prior written consent of the other Party,
except as otherwise provided herein. Notwithstanding the foregoing, Platform Group may refer
to or identify the Customer as customer by name and logo, including in promotional materials
and press releases when listing other customers of the Services, and may otherwise use the
Customer’s name, logo, and other trademarks as necessary to provide the Services.
Any notice, request, demand, or other communication required or permitted under the
Agreement or any portion thereof will be in writing and will be deemed given: (i) when
personally delivered; (ii) the first business day after sending by confirmed email or confirmed
fax; (iii) three business days after mailing by certified or registered mail, return receipt
requested; or (iv) otherwise, as agreed to by the Parties in writing. All communications will be
sent to the applicable address and contact set forth in the Order Form or any portion thereof or as
otherwise notified by a Party to the other Party.
The Agreement will be exclusively governed by and construed and enforced in
accordance with the laws of the Province of Ontario and the federal laws of Canada applicable
therein. Each Party consents and submits to the exclusive jurisdiction of the courts (provincial
and federal) located in the City of Toronto in the Province of Ontario in connection with any
dispute or controversy arising under or related to the Agreement. The Parties hereby waive any
objections they may have in any such action based on lack of personal jurisdiction, improper
venue, or inconvenient forum. EACH PARTY WAIVES ITS RIGHTS TO A JURY TRIAL AND
WARRANTS THAT IT HAS REVIEWED THIS WAIVER WITH COUNSEL. The Customer
may not bring any Claim in respect of any Agreement or any Services or related thereto more
than one (1) year after the cause of action accrues.
Unless the context of the Agreement otherwise requires, words importing the singular
will include the plural and vice-versa. The words “hereof,” “herein,” and “hereunder,” and words
of similar import, when used in the Agreement, refer to the Agreement as a whole and not to any
provision of the Agreement. The words “include,” “includes” and “including” mean include
without limitation, includes without limitation, and including without limitation, respectively.
The headings in the Agreement or any portions thereof are for reference only and will not affect
the interpretation thereof. Except as otherwise expressly provided herein or in the applicable
Order Form, remedies herein or in the applicable Order Form are in addition to, and not
exclusive of or in limitation of, any other rights or remedies of a Party. In the event of any
conflict or inconsistency between the Terms of Service and the Order Form, the Order Form will
prevail to the extent of such conflict or inconsistency.
(a) Entire Agreement. The Agreement sets forth the entire understanding of the
Parties with respect to the subject matter of the corresponding Order Form. All other
prior agreements, discussions, and understandings between the Parties regarding the
subject matter hereof are superseded. In the case of a conflict or inconsistency between
or among any provisions in these Terms of Service and the Order Form related thereto,
the provisions of the Order Form will control to the extent of such conflict or
inconsistency.
(b) Amendment. The Agreement may only be amended upon a duly executed
written agreement of the Parties, except as otherwise provided herein or in the
applicable Order Form.
(c) Severability. If any term or provision of the Agreement is invalid, illegal or
unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not
affect any other term or provision of this Agreement or invalidate or render
unenforceable such term or provision in any other jurisdiction.
(d) Waiver. Waiver of or failure by either Party to complain of any act, omission, or
default on the part of the other Party, no matter how long the same may continue or how
many times such will occur, will not be deemed a waiver of rights, or of any similar
future act, omission, or default under the Agreement. No term or provision of the
Agreement will be deemed waived and no breach excused, unless such waiver or
consent is in writing and signed by the Party claimed to have waived or consented.
(e) Injunctive Relief. Each Party acknowledges that a breach of its confidentiality
obligations or obligations with respect to the other Party’s Intellectual Property may
cause the non-breaching Party irreparable damages, for which an award of damages
would not be adequate. In the event of such breach, the non-breaching Party will be
entitled to seek injunctive relief or other equitable relief, without being required to post
a bond or provide an undertaking.
(f) Relationship. The Parties are independent contractors, and nothing in the
Agreement will be deemed or construed to create an agency, partnership, or joint
venture between the Parties.
(g) No Third-Party Beneficiaries. Except as otherwise expressly provided in the
Agreement, there are no third-party beneficiaries to the Agreement.
(h) Counterparts. The Order Form may be executed in counterparts (including via
fax and PDF). Each counterpart will have the same force and effect as an original, but
together will be deemed to be one and the same agreement.
In addition to the terms defined elsewhere in these Terms of Service or in the applicable
Order Form, the following terms have the meanings ascribed to them as follows:
(a) “Access Credentials” has the meaning ascribed to such term in Section 3(f).
(b) “Affiliate” means, with respect to any Person, any corporation, company,
partnership, association, or other business entity which directly or indirectly controls, is
controlled by, or is under common control with the subject Person.
(c) “Agreement” has the meaning ascribed to such term in each Order Form.
(d) “Change of Control” means a change of ownership, directly or indirectly, of
more than fifty percent (50%) of the shares conferring the right to vote at a general
meeting (or its equivalent) of such entity or otherwise to appoint the majority of the
directors or other governing body of such entity, and the expressions Controlling and
Controlled shall be construed accordingly.
(e) “Claim” has the meaning ascribed to such term in Section 13(a).
(f) “Confidential Information” means any electronic, written or oral data, or
information that is designated or treated by a Party as confidential or that reasonably
should be understood to be non-public, confidential, or proprietary information
including information pertaining to business operations and plans, customers, suppliers,
products, services, pricing or marketing activities of a Party, and materials embodying
or derived from the same in any media. The Confidential Information of Platform Group
specifically includes the Agreement, Platform Group Property (including Data, Reports,
technology, systems, and trade secrets) and Personal Information. Confidential
Information does not include information that the Parties agree is not Confidential
Information, or information that the recipient Party can demonstrate: (i) was known to
the recipient Party prior to disclosure by the disclosing Party; (ii) was obtained without
any breach of any confidentiality obligation by the recipient Party from a Person other
than the disclosing Party; (iii) was independently developed by or on behalf of the
recipient Party without access to or use of the other Party’s Confidential Information;
(iv) was publicly known prior to disclosure by the disclosing Party; or (v) became
publicly known after receipt by, and without fault of, the recipient Party.
(g) “Consumer Price Index” means the Consumer Price Index, All Items, Canada,
published by Statistics Canada or, if such index is not available, such other index as the
Parties may agree most closely resembles such index.
(h) “Customer” has the meaning ascribed to such term in each Order Form.
(i) “Customer Data” means Uploaded Information and any data or information
that is a result of any modification, adaption, revision, translation, abridgement,
condensation, aggregation, consolidation, compilation, evaluation, expansion, or other
recasting or processing of the Uploaded Information through the Services.
(j) “Data” means any data, information, or other content, or portion or combination
thereof, made available through or included in the Services, subject to the limitations
herein and in the applicable Order Form other than Customer Data.
(k) “Database” means any database made available through the Services under the
Agreement, subject to the limitations herein and in the applicable Order Form.
(l) “Derived Content” means content or materials derived from the Services.
(m) “Effective Date” has the meaning ascribed to such term in each Order Form.
(n) “Expenses” means all reasonable out-of-pocket expenses and third-party
charges incurred by Platform Group in providing the Services under the applicable
Order Form that are not expressly included in the Fees.
(o) “Fees” has the meaning ascribed to such term in each Order Form entered into
by the Parties.
(p) “Intellectual Property” means: (i) any right that is or may be granted to, or
recognized for the benefit of, any Person under any legislation in Canada and other
foreign jurisdictions or at common or, as applicable, civil law in Canada or in other
foreign jurisdictions regarding patents, copyright, and any copyrightable subject matter
(including moral rights), trade-marks, trade names, service marks, Confidential
Information, trade secrets, industrial designs, and integrated circuit topography rights,
including any other statutory provision or common or civil law principle regarding
intellectual property, whether registered or unregistered, and including rights in any and
all applications, registrations, re-issues, divisional, renewals, re-examinations relating to
the foregoing; and (ii) any rights contained in or associated with licenses and
sub-licenses from third-parties relating to the foregoing.
(q) “Irwin Platform” means the Irwin Software Platform described on the Order
Form, including any features, functionalities, limitations or restrictions set out therein.
(r) “Law” means all international, national, federal, state, provincial, local or
foreign statutes, laws, treaties, constitutions, ordinances, regulations, rules, judgments,
decisions, writs, codes, orders and other requirements or rules of law, and all judicial
interpretations in respect thereof.
(s) “Order Form” is the order form agreed to by the Customer and Platform Group
detailing the commercial terms governing the Customer’s access to or use of the
Services.
(t) “Order Term” has the meaning ascribed to such term in each Order Form.
(u) “Parties” means Platform Group and the Customer, and “Party” means any one
of them.
(v) “Permitted User” means employees of the Customer that meet the
qualifications set forth hereunder or in the applicable Order Form and are authorized to
use the Services.
(w) “Person” means any company, corporation, partnership, joint venture, limited
liability company, organization, governmental authority, natural person, or other entity.
(x) “Personal Information” means any information about an identifiable individual
or is otherwise subject to applicable privacy Laws.
(y) “Platform Group” has the meaning ascribed to such term in each Order Form.
(z) “Platform Group Property” means: (i) the Services; (ii) any and all materials,
information, documents, Data, or advice (in any form or media) conceived, authored,
invented, compiled, created, generated, produced, licensed, or provided by Platform
Group or its Affiliates, Confidential Information, Reports, market intelligence
information, shareholder identification information, investor targeting information, and,
as between the Parties, any Data or Derived Content other than Customer Data; (iii) any
modifications, enhancements, customizations, improvements, or derivatives of the
foregoing subject matter in clause (i); and (iv) any Intellectual Property in the subject
matter described in clauses (i) and (ii) above.
(aa) “Privacy Policy” means Platform Group’s privacy policy, as updated from time
to time, the current version of which can be found at the following website:
http://getirwin.com/privacy/.
(bb) “Professional Services” means the professional services, if any, described on
the Order Form.
(cc) “Renewal Term” has the meaning ascribed to such term in Section 10(a).
(dd) “Reports” means any reports provided as part of the Services.
(ee) “Security Event” has the meaning ascribed to such term in Section 8(b).
(ff) “Services” or “Service” means the provision of the Irwin Platform as a
software-as-a-service, the Professional Services and any other related products or
services made available by Platform Group under this Agreement.
(gg) “Service Credit” has the meaning ascribed to such term in the Service Level
Agreement.
(hh) “Service Level Agreement” means Platform Group’s service level agreement
which is attached hereto as Schedule “A”, the terms of which are hereby incorporated.
(ii) “Service Level” has the meaning ascribed to such term in the Service Level
Agreement.
(jj) “Site Policies” has the meaning ascribed to such term in Section 3(g).
(kk) “Taxes” has the meaning ascribed to such term in Section 2(c) unless otherwise
set out in an Order Form between the Parties thereto.
(ll) “Terms of Service” has the meaning ascribed to such term in the Order Form.
(mm) “Uploaded Information” has the meaning ascribed to such term in Section
3(h).
Platform Group may unilaterally amend this Service Level Agreement (“SLA”) from time to
time by updating this Schedule "A", but will provide sixty (60) days advance notice to
Customer before materially reducing the benefits offered to Customer under this SLA.
Capitalized terms used but not defined herein shall have the respective meanings given to them
in the Terms of Service and applicable Order Form.
During the term of the applicable Order Form, Platform Group
will use reasonable efforts to achieve a Monthly Uptime Percentage of at least 99.5% for any
calendar month. If Platform Group does not meet the Service Level, and so long as the
Customer’s account with Platform Group is current, Customer will be eligible to receive Service
Credits described below. Service Credits are Customer’s exclusive remedy for any failure by
Platform Group to meet the Service Level. Platform Group and Customer hereby agree as
follows:
1. Definitions. The following definitions apply to this Addendum.
“Downtime” means the time in which the Service is not capable of being accessed or used by
the Customer, as monitored by Platform Group.
“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the
number of minutes of Downtime suffered in a calendar month, divided by the total number of
minutes in a calendar month.
“Exclusion from Downtime” The following are not counted as Downtime for the purpose of
calculating Monthly Uptime Percentage:
· Service unavailability caused by scheduled maintenance of the platform used to
provide the applicable Service (Platform Group will endeavour to provide seven
days’ advance notice of Service-affecting scheduled maintenance);
· Service unavailability caused by events outside of the direct control of Platform
Group or its subcontractor(s), including any force majeure event, as described in
Section 15 of the Terms of Service, a Customer Cause, the Internet, and the failure of
any other technology or equipment used to connect to or access the Service.
“Customer Cause” means any of the following: (a) any negligent or improper use,
misapplication, misuse or abuse of, or damage to, the Service by Customer; (b) any
use of the Service by Customer in a manner inconsistent with the Terms of Service;
(c) any use by Customer of a non-current version or release of the Service; or (d) any
failure or unavailability of Customer’s systems.
“Service” means the Irwin Platform as described in the applicable Order Form.
“Service Credit” means a percentage of monthly Fees to be credited to Customer if Platform
Group fails to meet a Service Level. If Fees are billed on an annual basis, total Fees shall be
divided by 12 calendar months to calculate the appropriate Service Credit.
“Service Level” means a Monthly Uptime Percentage of at least 99.5% for any calendar month.
2. Service Credits.
Service Credits are issued as a financial reimbursement if Platform Group does not meet the
Service Level for uptime in a particular month of the Order Term. Upon approval of a claim,
Platform Group will provide the applicable remedy set forth below:
3. Response Time
The response times below outlines the expected amount of time it would take for a
customer to get a response on an inquiry related to Downtime.
4. Claim Procedure.
To receive a Service Credit for a particular billing period, Customer must submit a claim by
email to the support team (support@imirwin.com) within 30 days of the end of the month during
which the Service did not meet the Service Level, and include the following information:
· Customer name and username;
· the name of the Service to which the claim relates;
· the name, email address, and telephone number of the Customer’s designated contact;
and
· information supporting each claim of Downtime, including date, time, and a
description of the incident and affected Service, all of which must fall within the
calendar month for which you are submitting a claim.
Any approved Service Credit shall be applied to the next invoice following the billing period
in which the Service Level failure occurred. A Service Credit does not entitle Customer to a
refund or other payment from Platform Group. A Service Credit may not be transferred or
applied to any other account.