Alcumus Cloud Service Agreement

This Cloud Services Agreement (this “Agreement”) is entered into as of the Effective Date between eCompliance Management Solutions Inc. (“Alcumus”) and Customer and governs Customer’s acquisition and use of Alcumus’s Cloud Service. Capitalized terms shall have the meanings set forth on Exhibit 1 (Definitions) or elsewhere in this Agreement.

By executing an Order Form referencing this Agreement effective as of the date on which Customer has signed the Order Form (“Effective Date”) or by accessing Services after clicking an “I agree” (or similar) button, Customer accepts and agrees to the terms of this Agreement. If the Person accepting this Agreement is an individual acting on behalf of a company or other legal entity, such individual represents that they have the authority to accept and bind such entity to this Agreement, in which case the term “Customer” shall refer to such entity.

The Software for which the Cloud Service is provided hereunder shall be set forth in an Order Form. A description of the Software ordered by Customer as a Cloud Service, and the specific terms and conditions in respect of such Software, is set out in a schedule at https://www.Alcumus.com/legal_documents under Product Terms (a “Software Schedule”), which relevant Software Schedule(s) is/are hereby incorporated by reference.

  • ACCESS TO AND USE OF THE CLOUD SERVICE
    • Generally. Alcumus shall make the Cloud Service available to Customer pursuant to this Agreement. Customer may allow its Subsidiaries to access and use the Cloud Service, provided that (a) Customer shall cause each such Subsidiary to abide by the terms and conditions of this Agreement and shall remain fully liable for the acts and omissions of such Subsidiaries and (b) a Subsidiary’s right to access and use the Cloud Service shall automatically terminate if it is no longer a Subsidiary of Customer.
    • Documentation. Alcumus hereby grants to Customer a non-exclusive, non-transferable license to use and reproduce the Documentation solely for Customer’s and its Subsidiaries’ internal business purposes in connection with their use of the Cloud Service.
    • . Customer, its Subsidiaries, and Authorized Users shall use the Cloud Service only as expressly permitted by this Agreement and shall not, and shall not permit or authorize any other Person, directly or indirectly, to: (a) modify, copy or create any derivative work based on the Cloud Service or Documentation; (b) license, sublicense, sell, resell, lease, transfer, assign, distribute, time share, offer in a service bureau, or otherwise make the Cloud Service or Documentation available to any third party, other than Authorized Users as permitted herein; (c) decompile or reverse engineer any portion of the Cloud Service or the Software (except to the extent the foregoing restriction is prohibited under applicable Law); (d) make any use of the Cloud Service that violates applicable Law or the privacy rights, Intellectual Property Rights, or other rights of any Person; (e) circumvent the user authentication or security of the Cloud Service or any host, network, or account related thereto; (f) transmit any viruses, worms, defects, Trojan horses, or programming of a destructive nature through the Cloud Service; or (k) delete, remove, modify, obscure, fail to reproduce, or in any way interfere with any proprietary, trade secret, or copyright notice appearing on or incorporated in the Cloud Service or Documentation.
  • Changes to Cloud Service. Alcumus may modify the Cloud Service and Documentation from time to time at Alcumus’ sole discretion and such modifications shall replace prior versions. Except for modifications made to comply with applicable Law, Alcumus shall not make any modifications to the Cloud Service that would degrade its functionality.
    • Suspension of the Cloud Service. Alcumus may suspend immediately Customer’s or any Authorized User’s account or access to or use of the Cloud Service if such account or activity is (a) disrupting or causing harm to Alcumus’ or another Person’s computers, systems, or infrastructure or (b) is in violation of Section 2.3, applicable Law, or the Documentation; provided that, Alcumus shall notify Customer of any such suspension and shall remove such suspension upon resolution to Alcumus’ reasonable satisfaction of the circumstances giving rise to such suspension.
    • Acceptable Use Policy. Customer shall be responsible for each Authorized Users’ compliance with, and breach of, this Agreement, including the Acceptable Use Policy at http://INSERT LINK
  • Discontinuance.  Alcumus reserves, without liability, the right at any time to discontinue, temporarily or permanently, the Cloud Services (or any part thereof) and will provide Customer with no less than forty-five (45) days’ notice of any such expected discontinuances by Alcumus.  If the entire Cloud Services are discontinued without cause, Customer’s sole and exclusive remedy is to receive a refund equal to the prorated amount of unused Cloud Services.
  • FEES AND PAYMENT
    • . In consideration for Customer’s access to and use of the Cloud Service and Documentation and receipt of the Support Services, Customer shall pay to Alcumus the fees for the Cloud Service set forth in each Order Form (the “Fees”).
    • . All amounts due hereunder shall be due upon receipt of Alcumus’ invoice and payable within fifteen (15) days of the invoice date. Except as otherwise expressly set forth herein, all amounts paid under this Agreement are non-refundable. in the event of payment after the due date, interest shall be payable on the overdue amount(s) at an amount equal to 1% per month of the overdue amounts or the maximum amount permissible under applicable law (whichever is the lesser). Customer will be responsible for, and Alcumus entitled to recover from Customer, all costs associated with collecting any fees or other amounts due and owing to Alcumus from Customer, including but not limited to any legal costs, lawyer’s fees, court costs and collection agency fees.
    • . All Fees are exclusive of any sales, use, customs or other duty, tax, and similar levies imposed by any authority resulting from the transactions contemplated by this Agreement (“Taxes”). All Taxes (other than taxes on Alcumus’ net income), and penalties and interest relating thereto, shall be Customer’s responsibility. If Customer is required to deduct withholding tax from payments to Alcumus in accordance with applicable law, Customer shall promptly send to Alcumus the official tax certificate certifying such withholding tax deduction. If a deduction or withholding is so required, Customer shall pay to Alcumus such additional amounts as will ensure that the net amount received and retained by Alcumus equals the full amount which Alcumus would have received had the deduction or withholding not been required.
    • Suspension for Nonpayment. Without prejudice to any other right or remedy Alcumus may have, if Customer fails to pay any undisputed amounts when due and does not remedy such failure within ten (10) Business Days after the date such amounts were due, Alcumus may, without liability, cease performing or making available, as applicable, some or all of the Services, including access to the Cloud Service, until full payment of all undisputed outstanding amounts is received.
    • Verification of Use. Alcumus shall have the right to monitor Customer’s use of the Cloud Service for the purpose of verifying Customer’s compliance with this Agreement.
    • Usage Limits. Cloud Service is subject to usage limits, including, for example, the quantities specified in Order Forms and technical and functional requirements set forth within the Documentation. Unless otherwise specified, (a) a quantity in an Order Form refers to Users, and the Service may not be accessed by more than that number of Users, (b) a User’s password may not be shared with any other individual, and (c) a User identification may be reassigned to a new individual replacing one who no longer requires ongoing use of the Cloud Service. If the Customer exceeds a contractual usage limit, Alcumus may work with the Customer to seek to reduce the Customer’s usage so that it conforms to that limit. If, notwithstanding Alcumus’ efforts, the Customer is unable or unwilling to abide by a contractual usage limit, the Customer will execute an Order Form for additional quantities of the Cloud Service promptly upon Alcumus’ request, and/or pay any invoice for excess usage in accordance with Section 3.2.
  • ADDITIONAL SERVICES
    • . Alcumus shall provide Customer with technical support for the Cloud Service (the “Support Services”) in accordance with the terms and conditions set out in the “Support Services Schedule" at: https://www.Alcumus.com/legal_documents.[SJ3] 
    • Professional Services. In the event Customer requests Alcumus to provide Professional Services, the provision of thereof shall be governed by the terms and conditions of the Professional Services Schedule at: https://www.Alcumus.com/legal_documents, [SJ4] which is hereby incorporated by reference in this Agreement.
  • CUSTOMER RESPONSIBILITIES
    • Accuracy. Alcumus shall have no obligation to check any Customer Data for accuracy, adequacy, or completeness and may assume that all Customer Data uploaded to the Cloud Service or provided to Alcumus is accurate, adequate, and complete as submitted. 
    • . Alcumus shall use, process, retain, and disclose Customer Data only as necessary for the specific purpose of providing the Cloud Service and in compliance with Alcumus’ data security standards and procedures set forth at: https://www.Alcumus.com/legal_documents (the “Data Security Standards”). Customer acknowledges that (a) Alcumus may modify the Data Security Standards from time to time at Alcumus’ sole discretion and (b) such modifications shall supersede prior versions; provided that such modified Data Security Standards shall be, except to the extent required to comply with applicable Law, no less protective of the Customer Data than the Data Security Standards in place as of the Effective Date.
  • TERM AND TERMINATION
    • Automatic Renewal. Unless terminated as provided in this Agreement or either Party provides the other Party with at least forty-five (45) days’ advance written notice prior to the end of the then-current Subscription Term that it does not wish to renew such Subscription Term, or otherwise specified in an Order Form, this Agreement and the Cloud Service will automatically renew for the term duration set forth in the Order Form. 
    • Termination by Either Party. Either Party may terminate this Agreement:
  • upon written notice if the other Party is in material breach and the breaching Party has failed to cure such breach within thirty (30) days after receipt of notice from the non-breaching Party describing the breach in reasonable detail; or
  • with immediate effect by giving written notice to the other Party if the other Party admits in writing its inability to pay its debts as they fall due, suspends or threatens to suspend payment of its debts, applies for or consents to the appointment of a trustee, receiver, or other custodian, makes a general assignment for the benefit of its creditors, or initiates any bankruptcy, reorganization, debt arrangement, or other case or proceeding under any bankruptcy or insolvency law.
    • 7.3.      Effect of Termination. Upon the expiration or termination of this Agreement: (a) Customer shall immediately cease all access to and use of the Services and associated Alcumus IP and the rights granted in this Agreement shall automatically terminate; (b) Customer shall immediately pay to Alcumus all Fees and other amounts due hereunder, including under any outstanding Order Forms and SOWs; and (c) Alcumusmay destroy or otherwise dispose of any of the applicable Customer Data in its possession unless Alcumus receives, no later than thirty (30) days after the date of the termination of the SOW and/or this Agreement, a written request for the delivery to the Customer of the then most recent back-up of the applicable Customer Data. Alcumus shall use reasonable commercial endeavors to deliver the back-up to the Customer (in CSV format or similar format as decided by Alcumus) within 60 days of its receipt of such a written request, provided that the Customer has, at that time, paid all Fees and charges outstanding at and resulting from termination (whether or not due at the date of termination). The Customer shall pay all reasonable expenses incurred by Alcumus in returning or disposing of the applicable Customer Data, together with Alcumus’ fees for undertaking the delivery, charged in accordance with Alcumus’ then current rates as set out in the applicable Order Form and/or SOW.
  • . The termination or expiration of this Agreement will not affect any provisions which by their nature survive termination, Sections 2.3 (Restrictions), 3.2 (Payment), 3.3 (Taxes), 7.3 (Effect of Termination), 7.4 (Survival) and 8 (Proprietary Rights) through 13 (Miscellaneous).
    • Customer Data. As between Customer and Alcumus, Customer owns and shall retain all right, title, and interest, including all Intellectual Property Rights, in the Customer Data. Customer hereby grants to Alcumus and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit the Customer Data for the purpose of providing and making the Services available to Customer and its Users pursuant to this Agreement.  Alcumus may collect and analyze data and other information relating to the provision, use and performance of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom) and, during and after the Term of this Agreement, Alcumus may: (i) use such data and information to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Alcumus offerings and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business.
    • . As between Customer and Alcumus, Alcumus owns and shall retain all right, title, and interest, including all Intellectual Property Rights, in and to the Software, Services, Alcumus’ and its licensors’ trademarks, service marks, logos, and other indicia of origin used in connection with the Services, the Usage Data (as defined below), all proprietary information and know-how of Alcumus and its licensors incorporated in or used in the provision of the Services, and all updates, modifications, improvements, and derivative works of any of the foregoing (collectively, the “Alcumus IP”). All use of Alcumus’ and its licensors’ trademarks, service marks, logos, and other indicia of origin hereunder shall inure to the benefit of the owner thereof. Alcumus may only disclose Usage Data in the aggregate and in an anonymized fashion so that it is not possible to identify Customer or any Authorized User. “Usage Data” means all metadata and navigational, transactional, computer (e.g., IP address and browser), statistical, analytical, and similar data collected, generated, or derived from the use of the Services by Customer or its Subsidiaries or on their behalf.
    • Feedback. Customer grants to Alcumus and its Affiliates a worldwide, perpetual, irrevocable, royalty-free, fully paid-up, license to use, copy, modify and distribute, without attribution, including by incorporating into any software or service owned by Alcumus, any suggestion, enhancement request, recommendation, correction or other feedback (collectively, “Feedback”) provided by Customer or users relating to any software or service owned or offered by Alcumus.For greater certainty, Customer has no obligation to provide any Feedback to Alcumus.
    • By Both Parties. Each Party represents and warrants to the other Party that: (a) it has the right, power, and authority to enter into this Agreement and perform its obligations hereunder; (b) this Agreement is a legal and valid obligation binding upon it and enforceable in accordance with its terms; (c) its entry into this Agreement and performance hereof shall not result in any breach or default under, and do not conflict with, any agreement, instrument, or understanding, oral or written, to which it is a party; and (d) all of its and its Affiliates’ activities under this Agreement shall be performed in compliance with applicable Law.
    • By Alcumus. Alcumus represents, warrants, and covenants that (a) the Cloud Service will perform materially in accordance with the applicable Documentation, (b) it shall use reasonable efforts to scan the Cloud Service for any malicious code, virus, Trojan horse, malware, spyware, adware, worm, or other device, the effect of which is to permit unauthorized access to or disrupt, damage, erase, or otherwise harm, any computer, systems or software or to perform unauthorized actions on a computer system and (c) it shall provide the Services using commercially reasonable care and skill.
    • By Customer. Customer represents, warrants, and covenants that (a) it owns all right, title and interest in or has a license to all Customer Data, including Personal Data, and has the right to, and has obtained from all applicable Persons all rights and consents necessary to, grant to Alcumus the rights granted in this Agreement, including to use, modify, process and reproduce such Customer Data in connection with the use of the Cloud Service and (b) all designs, specifications, instructions, directions, and Customer Data furnished to Alcumus by Customer or their respective Representatives shall comply with all applicable requirements of any licenses between Customer and the licensor of such Customer Data.
    • Warranty Disclaimer. EXCEPT FOR THE WARRANTIES EXPRESSLY SET FORTH IN SECTION 9, THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ALCUMUS AND ITS AFFILIATES AND THIRD PARTY SUPPLIERS HEREBY EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, THAT DEFECTS SHALL BE CORRECTED, THAT THE SERVICES SHALL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ACCESS TO THE SERVICES AND THEIR USE SHALL BE UNINTERRUPTED OR ERROR-FREE.
    • Alcumus shall, at its expense, defend Customer from and against any and all claims, demands, suits, actions or proceedings by a third party (for the purposes of this Section 10, “Claims”), and shall indemnify and hold harmless Customer from and against any and all liabilities, losses, damages, costs or expenses (including reasonable outside lawyers’ fees) (for the purposes of this Section 10, “Losses”) suffered or incurred by Customer in relation to any and all such Claims: (a) that the Cloud Services infringe upon an Intellectual Property Right under the laws of Canada or the United States; provided that the Losses suffered or incurred by Customer resulting from such infringement Claim are required to be paid in a settlement approved by Alcumus or awarded by a court in a final, non-appealable judgement; or (b) regarding Alcumus’ fraud or willful misconduct.
    • Customer shall, at its expense, defend Alcumus and its Affiliates from and against any and all Claims, and shall indemnify and hold harmless Alcumus and its Affiliates from and against any and all Losses, suffered or incurred by Alcumus and/or its Affiliates in relation to any and all such Claims regarding: (a) Customer Data; (b) Customer’s breach of any and all of Section(s) 2.3, 8.1 or 8.2 of this Agreement; or (c) Customer’s fraud or willful misconduct. 
    • If any part of the Cloud Services is, in Alcumus’ opinion, likely to or does become the subject of a Claim of infringement of third party Intellectual Property Rights, then  Alcumus may: (a) use reasonable efforts to modify the affected portion of the Cloud Services so that it is non-infringing; (b) obtain permission, at Alcumus’ expense, for Customer to continue to use such portion; or (c) terminate this Agreement or the applicable Order Form(s) in exchange for a pro rata refund of any unused prepaid Fees for the then-current applicable Subscription Period as liquidated settlement of any liability other than the obligation of indemnification in Section 10.1.
    • 10.1 and 10.3 constitute Customer’s sole remedies, and Alcumus’ sole obligations, in respect of infringement of intellectual property rights.
    • The indemnification obligations on the part of either Party are conditional upon: (a) the indemnifying Party being notified in writing promptly of the indemnified Party’s receipt of notice of the Claim (provided, however, that the failure to provide such notice shall not relieve the indemnifying Party of its indemnification obligations under this Section 10, except to the extent of any material prejudice to the indemnifying Party as a direct result of such failure); (b) the indemnifying Party having sole control over the defence or settlement of such Claim; and (c) the indemnifying Party being given the necessary authorization, information and full co-operation and assistance by the indemnified Party for the defence of same (at the indemnifying Party’s cost); provided in all cases, however, that the indemnifying Party shall not make any admission against the indemnified Party’s interests or enter into any settlement or compromise of any Claim in the event such settlement or compromise imposes any liability or obligation on the indemnified Party without the indemnified Party's prior written consent.
    1. LIMITATIONS.  IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY HEREUNDER FOR ANY AND ALL CLAIMS EXCEED THE TOTAL OF ALL AMOUNTS PAID BY CUSTOMER TO ALCUMUS PURSUANT TO THIS AGREEMENT IN THE 12 MONTH PERIOD PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED.  FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL ALCUMUS’ SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT. 
    1. EXCLUSIONS.  IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY OF THE FOLLOWING ARISING OUT OF OR CONNECTED TO THIS AGREEMENT: (A) INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, AGGRAVATED, EXEMPLARY OR PUNITIVE DAMAGES; (B) LOST GOODWILL, SALES, REVENUE, PROFITS, SAVINGS, DATA, USE, OR  CONTENT; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR  REAL PROPERTY DAMAGE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN, IN NO EVENT WILL ALCUMUS BE LIABLE FOR ANY LOSSES OR DAMAGES WHATSOEVER RESULTING FROM: (I) ANY ACTS, OMISSIONS OR FAILURES OF CUSTOMER OR CUSTOMER SYSTEMS (INCLUDING ANY CUSTOMER FAILURE), ANY FAILURE TO SECURE OR SAFEGUARD ACCESS METHODS, ANY AVAILABLE THIRD PARTY PRODUCTS & SERVICES,  OR ANY THIRD PARTY SUPPLIERS,; (II) PROVISION OF THE SERVICES WHICH OCCURS OUTSIDE OF THE BOUNDARY OF ALCUMUS’ OWNED OR DIRECTLY OPERATED INFRASTRUCTURE (MEANING: THE POINT AT WHICH ALCUMUS’ OWNED OR DIRECTLY OPERATED INFRASTRUCTURE MEETS EITHER: (X) THE PUBLIC INTERNET; (Y) AN INTERFACE TO A THIRD PARTY SUPPLIER; OR (Z) A CONNECTIVITY BETWEEN ALCUMUS AND CUSTOMER AND/OR ANY USERS, SUCH AS AN API); OR (III) ANY MALFEASANT OR WILFUL ACT OR OMISSION BY ANY THIRD PARTY (SUCH AS, WITHOUT LIMITATION, ‘DDOS’ ATTACKS).  CUSTOMER’S SOLE AND EXCLUSIVE REMEDY RELATED TO AVAILABLE THIRD PARTY TOOLS SHALL BE WITH AND AGAINST THE THIRD-PARTY MANUFACTURERS OR PROVIDERS OF SUCH TOOLS.
    1. CARVE-OUTS.  THE LIMITATIONS ON LIABILITY IN THIS SECTION 11 DO NOT APPLY TO LIABILITY ARISING FROM A PARTY’S FRAUD OR WILLFUL MISCONDUCT, CUSTOMER’S BREACH OF ITS PAYMENT OR TAX OBLIGATIONS HEREUNDER, OR CUSTOMER’S BREACH OF SECTION(S) 2.3, 8.1 or 8.2. 
    1. APPLICATION. THE LIMITATIONS AND EXCLUSIONS OF LIABILITY IN THIS SECTION 11 APPLY TO ALL CAUSES OF ACTION, WHETHER BASED IN CONTRACT, TORT OR OTHERWISE (INCLUDING FOR FUNDAMENTAL BREACH, GROSS NEGLIGENCE AND NEGLIGENCE), REGARDLESS OF CAUSE OF ACTION OR THEORY OF LIABILITY, EVEN IF ANY EXCLUSIVE REMEDY PROVIDED FOR HEREIN FAILS ITS ESSENTIAL PURPOSE, AND EVEN IF A PARTY IS ADVISED IN ADVANCE OF THE DAMAGES IN QUESTION OR EVEN IF SUCH DAMAGES WERE FORESEEABLE.
    1. Confidentiality. “Confidential Information” means any information or materials disclosed to or received by a Party or its Affiliates (the “Recipient”) from or on behalf of the other Party (the “Discloser”) in connection with this Agreement that is marked “confidential” or “proprietary” or would reasonably be understood by the Parties as confidential, including the terms of this Agreement. For the avoidance of doubt, the term Confidential Information does not include Customer Data; the confidentiality and security of Customer Data is addressed in the Data Security Standards.
    1. . During the term of this Agreement and for a period of two (2) years thereafter (other than for trade secrets, which shall be indefinite), Recipient shall: (a) hold Discloser’s Confidential Information in confidence using the same degree of care as it uses to protect its own confidential information, but in no event less than a reasonable degree of care; (b) limit disclosure of Discloser’s Confidential Information to its Representatives having a need to know such Confidential Information for the purposes of this Agreement and who are bound to Recipient to protect the confidentiality of such Confidential Information in a manner that affords substantially equivalent protection as that required of Recipient hereunder; and (c) use Discloser’s Confidential Information solely for purposes of this Agreement, in accordance with this Agreement.
    1. Exclusions. Recipient’s obligations under Section 12.2 shall not apply to information or materials that (a) are or may hereafter be in the public domain (other than through unauthorized disclosure by Recipient); (b) were disclosed or otherwise known to it without any confidentiality obligation prior to disclosure by Discloser hereunder; (c) are lawfully obtained from a third party without confidentiality restriction; or (d) were independently developed by Recipient without reference to or use of Discloser’s Confidential Information.
    1. . Recipient shall not be deemed to be in breach of Section 12.2 if it discloses Discloser’s Confidential Information as may be required by law or a court of competent jurisdiction or any governmental or regulatory authority; provided that, to the extent legally permissible, Recipient provides Discloser with prior notice of its intention to make such disclosure and affords Discloser a reasonable opportunity (under the circumstances of any order of a court, government or regulatory authority or other request made upon Discloser) to seek an injunction or other appropriate remedy.
    1. Return or Destruction of Confidential Information. Upon the expiration or termination of this Agreement or earlier upon Discloser’s written request, Recipient and its Representatives shall, at Recipient’s election, return or destroy all of Discloser’s Confidential Information provided in connection with this Agreement; provided however, that Recipient may retain copies of written or printed Confidential Information of Discloser as is necessary to comply with its own document and information retention policies or as required by applicable Law, in which case, all such retained Confidential Information shall not be used or disclosed for any purpose except as necessary to comply with applicable Law.
    1. Injunctive Relief. Either Party’s breach of Section 12, or Customer’s breach of any restrictions set forth in this Agreement on Customer’s use of the Services or Alcumus IP, may cause immediate and irreparable harm for which money damages may not constitute an adequate remedy. In such event, the non-breaching Party shall be entitled to injunctive or other equitable relief for any such violation or incident, without proof of actual damages or requirement to post a bond.
    1. Publicity. In consideration for any pricing discount, Alcumus shall have the right to identify Customer as a customer and to use Customer’s logo in connection therewith in Alcumus’ marketing materials. Except as set forth in the preceding sentence, neither Party shall use any name, trademark, trade name, service name, or service mark, whether registered or not, of the other Party without the prior written consent of the other Party, unless required by applicable Law.
    1. . Neither Party may assign this Agreement, in whole or in part, without the prior written consent of the other Party; provided however, that Alcumus may assign this Agreement to its Affiliates or in connection with the sale of substantially all of its business, whether by the sale of assets, equity, or otherwise. Any assignment or purported assignment in violation of this Section 13.3 is null and void. This Agreement shall be binding on and inure to the benefit of the Parties and their respective permitted successors and assigns.
    1. Alcumus Contracting Entity, Governing Law, and Venue. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario, Canada without reference to the conflicts of law principles. This Agreement shall not be governed by the United Nations Convention of Contracts for the International Sale of Goods, as amended, replaced or re-enacted from time to time, the application of which is hereby expressly excluded. The exclusive venue for all claims arising out of or in connection with this Agreement shall be in Toronto, Ontario, Canada, but the Parties agree that Alcumus may seek equitable relief in any venue it so chooses.
    1. Notices. All notices and consents shall be in writing and shall be deemed to be given: (a) when actually received, if delivered personally; (b) two (2) Business Days after the date delivered to a reputable international next-day courier service; (d) if sent by email, confirmation of receipt. Notices shall be sent to the Parties at their address set forth in the applicable Order Form or such other address as either Party may indicate by notice to the other Party. Notices to Alcumus shall be addressed to the attention of its General Counsel.  Notwithstanding the foregoing, any notices that purport to create, amend or incur obligations, terminate this Agreement, any Subscription Term, or any SOW, or provide notice of breach, indemnifiable claim or legal process may not be sent by email.
    1. Relationship of the Parties. Alcumus is an independent contractor, not Customer’s agent, partner or fiduciary, and does not undertake to perform any of Customer’s regulatory obligations or assume any responsibility for Customer’s business or operations.
    1. Export. Each Party shall comply with the export laws and regulations of the United States and other applicable jurisdictions in providing and using the Software or the Services. Without limiting the generality of the foregoing, Customer shall not make the Software or the Services available to any person or entity that: (i) is located in a country that is subject to a U.S. government embargo; or (ii) is listed on any U.S. government list of prohibited or restricted parties.
    1. Waiver. A Party’s failure to exercise, delay in exercising, or partial exercise of a right or remedy provided by this Agreement or applicable Law shall not constitute a waiver of such right or remedy, a waiver of other rights or remedies, or a waiver of the further exercise of such right or remedy.
    1. . If the performance by a Party (the “Affected Party”) of any of its obligations (excluding payment obligations) under this Agreement is prevented, or delayed due to any cause beyond its reasonable control, including, work stoppages, natural disasters, pandemics, catastrophic weather events, fires, riots, accidents, terrorism, war, unavailability of Third Party materials, or outages of power or communications networks (each a “Force Majeure Event”), the Affected Party shall not be liable for such non-performance, or delay as long as the Force Majeure Event and its effects on the Affected Party continue. The Affected Party shall promptly notify the other Party in writing of the Force Majeure Event and the effect on the Affected Party’s performance. The Affected Party shall employ commercially reasonable efforts to mitigate the effects of the Force Majeure Event and resume performance as soon as practicable.
    1. Entire Agreement; Amendment.
      1. This Agreement, including all Order Forms and SOWs, represents the Parties’ entire agreement and supersedes all prior agreements, understandings, and representations, written or oral, between the Parties with respect to its subject matter.
      1. Other than Order Forms and SOWs, no purchase Order Form or other Order Form or confirming document or any handwritten or typewritten text which purports to modify or supplement the text of this Agreement shall add to or vary the terms of this Agreement. This Agreement and any SOW and any Order Form may only be amended by the written agreement of both Parties.
      1. In the event of a conflict between any terms, the following order of precedence shall apply:
  4. an Order Form; and
  5. a SOW; and
  6. this Agreement.
    1. Severability. If any provision of this Agreement is held to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement shall remain in full force and effect, and the invalid, illegal or unenforceable provision shall be replaced by a valid, legal, and enforceable provision that comes closest to the Parties’ intent. The Parties shall negotiate in good faith to agree to a replacement provision that, to the extent possible, achieves the intended commercial result of the original provision.
    1. Third Party Beneficiaries. Except as expressly set forth in this Agreement, any Person who is not a Party to this Agreement shall not be entitled to any benefit from or to enforce any right under this Agreement



EXHIBIT 1 – Definitions

"Access Method” means the user identifiers and passwords for the Cloud Services used to verify an Authorized User’s credentials to use the Cloud Services and Support pursuant to this Agreement.

“Affiliate” means, in relation to a Party, any Person that controls, is controlled by, or is under common control with such Party, where “control” means possessing (a) directly or indirectly, the power to direct or cause the direction of the management, policies, or operations of a Person, whether through ownership of voting securities, by contract, or otherwise or (b) the ownership of, or the power to vote, more than fifty percent (50%) of the voting stock, shares or interests of such Person.

“Agreement” means this agreement, its Exhibits, Schedules, any SOWs and Order Forms executed by the Parties in connection with the Services relating thereto, and all Attachments and Exhibits of any of the foregoing.

“Alcumus Disabling Device” means any software, hardware or other technology, device or means (including, without limitation any back door, time bomb, time out, drop dead device, software routine or other disabling device) used by Alcumus or its designee to disable Customer’s or any User’s use of the Services automatically with the passage of time or under the positive control of Alcumus or its designee.

“Alcumus IP” has the meaning given in Section 8.2.

“Authorized User” means Customer’s and its Subsidiaries’ employees, contractors, and agents (including temporary employees and contract employees) authorized by Customer to access and use the Cloud Service on Customer’s or any of its Subsidiaries’ behalf.

“Business Day” means a day (other than a Saturday or Sunday) on which banks are open for general business in New York, New York.

“Cloud Service” means the online, Web-based applications of the Software provided by Alcumus that are ordered by Customer under an Order Form.

“Customer” means the Person identified as “Customer” in the first Order Form executed by the Parties.

“Customer Data” means all Records, Personal Data, documents, content, and other data and information uploaded to the Cloud Service by Customer, any of its Subsidiaries, or any Authorized User.

“Data Protection Laws” means the EU General Data Protection Regulation 2016/679 (GDPR), the California Consumer Privacy Act, and any other applicable similar privacy or data protection Laws.

“Data Security Standards” has the meaning given in Section 6.1.

“Documentation” means the documentation for the Cloud Service made available by Alcumus to Customer, including training materials and user manuals, which may be amended by Alcumus from time to time upon notice to Customer.

“Effective Date” has the meaning given in the first paragraph of this Agreement.

“Fees” has the meaning given in Section 3.1.

“Force Majeure Event” has the meaning given in Section 13.9.

“Harmful Code” means any software, hardware or other technology, device or means, including any virus, worm, malware or other malicious computer code, the purpose or effect of which is to permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system or network or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality or use of any data Processed thereby. Harmful Code does not include any Alcumus Disabling Device.

“Intellectual Property Rights” means all patents, copyrights, moral rights, database rights, design rights, and rights in trade secrets and know-how, all other intellectual property and proprietary rights, all other equivalent or similar rights which may arise or exist anywhere in the world, in each case, whether registered or unregistered, and all applications for any of the foregoing rights.

“Law” means all applicable law, statutes, regulations and codes from time to time in force.

“Order Form” means any order for Services that references this Agreement and is executed by both Parties.

“Party” means each of Alcumus and Customer individually and “Parties” means Alcumus and Customer collectively.

“Person” means any individual, corporation, partnership, joint venture, limited liability company, association, joint-stock company, trust, unincorporated organization, self-regulatory organization, regulatory authority, or other governmental authority.

“Personal Data” means (a) any information that, either alone or in combination with other readily available data, identifies an individual or from which an individual is identifiable, including any name, address, financial information or social security number, and (b) any information that comprises “non-public personal information”, “personal information”, “personal data” or equivalent term, as such terms are defined in applicable Data Protection Laws.

“Personnel” means a Person’s employees, independent contractors, and subcontractors.

“Professional Services” means the services to be provided by Alcumus or any of its Affiliates to Customer set forth in any SOW.

“Record” means the data that represents any physical or electronic document managed by the Cloud Service, including forms and contracts.

“Representative” means a Person’s officers, directors, Personnel, attorneys, accountants, and agents.

“Services” means, collectively, the Cloud Service, the Support Services, and any Professional Services.

“SOW” means a statement of work for the provision of Professional Services by Alcumus to Customer executed by both Parties that references this Agreement.

“Software” means the object-code version of Alcumus’ software programs ordered by Customer in an Order Form (including any related Alcumus application programming interfaces).

“Software Schedule” has the meaning given in Section 1.

“Subscription Term” means the duration of the period during which Customer is entitled to use the Cloud Service, as set out in an Order Form.

“Subsidiary” means, in relation to a Party, any Affiliate that is controlled by such Party where “control” has the meaning given in the definition of “Affiliate”.

“Support Services” has the meaning given in Section 4.1.

“Third Party” means a Person other than Alcumus, Customer or their respective Affiliates.

“Usage Data” has the meaning given in Section 8.2.

“User” means the Authorized Users listed on the Order Form.


Last updated on August 22, 2022.