Last Updated: August 10, 2022

This Subscription Service Agreement (the “Agreement”) contains the terms and conditions that govern the access and use of Carve Subscription Service (as defined below) and is entered into by Valency Inc. (“Valency”) and the customer (“Customer”) identified in the corresponding Valency Subscription Order Form (“Order Form”) referencing this Agreement. Valency and Customer are sometimes referred to herein individually as a “Party” and together as the “Parties.”

This Agreement is effective and Customer agrees to be bound by its terms upon the Subscription Term start date in the Order Form (“Agreement Effective Date”). If the person entering into this Agreement is doing so on behalf of a legal entity, such person represents that it has the legal authority to bind such legal entity to this Agreement.

For good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby agree as follows:

1. Definitions

Affiliate” means any entity which directly or indirectly controls, is controlled by or is under common control with the subject entity. “Control,” for the purposes of this definition means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

Customer” means the specific corporation or division referred to in this Agreement and the associated Order Form or any permitted successor assignee (whether by change of name, dissolution, merger, consolidation, reorganization or otherwise) to such corporation or division or its business assets.

Customer Data” means any electronic information stored in the Software database. “Documentation” means user documentation provided electronically by Valency for use with the Subscription Service, as periodically updated.

Order Form” means a Valency order form agreed to in writing by the Parties under this Agreement or by Customer and a Valency authorized reseller.

Professional Services” means installation, implementation, configuration, training, consulting, project management, integration and development services, but does not include Subscription Service.

Software” means software that allows a user to use features in connection with the Subscription Service.

Subscription Service” means the Carve hosted solution provided by Valency that permits User access to the Software and Documentation. It does not include Professional Services.

Subscription Term” means the period of time during which Valency is required to provide Customer with the Subscription Service.

Third Party Applications” are applications with restricted access to Valency through the Software and/or are managed and operated independently of Valency.

2. Access to the Subscription Service. Valency grants Customer the right to receive the Subscription Service.

2.1. Customer must have a high speed Internet connection, and hardware and software that is compatible with the Subscription Service, which are not provided as part of the Subscription Service.

2.2. Valency will provide the support services (“Support Services”) as described in Exhibit A (Support Services). Upon Valency’s request, Customer will provide Valency with remote access to Customer’s computer systems as reasonably required for Valency solely to perform any Support Services and other obligations provided for under this Agreement, such as by web meeting or other means.

2.3. Valency solely owns the intellectual property in the Software, or is a licensed reseller of Third Party Application(s) and the Documentation. This Agreement is not intended to nor does it provide any license rights to the Software.

3. Conditions of Use. The Subscription Service provided to Customer are non-exclusive, nontransferable (except as provided in Section 15.4). Customer’s right to use the Subscription Service is conditional upon the following. Customer may not:

3.1. Transfer to any other person or entity any of its rights to use the Subscription Service;

3.2. Sell, rent or lease the Subscription Service, unless explicitly authorized in writing by Valency;

3.3. Create any derivative works based upon the Subscription Service or Documentation

3.4. Copy any feature, design or graphic in, or reverse engineer the Software;

3.5. Access the Subscription Service (i) in order to build a competitive solution or to assist someone else to build a competitive solution; or (ii) to provide access to an employee of a Valency competitor;

3.6. Use the Subscription Service in a way that violates any applicable criminal or civil law;

3.7. Load testing the Subscription Service for any purpose.

4. Customer Data.

4.1. Customer must provide all Customer Data for use in the Subscription Service, and Valency is not obliged to modify or add to the Customer Data. Customer is solely responsible for the content and accuracy of the Customer Data.

4.2. The Customer Data belongs to Customer, and Valency makes no claim to any right of ownership in it.

4.3. Valency must keep the Customer Data confidential in accordance with Section 11 of this Agreement.

4.4. Valency must use the Customer Data strictly as necessary to carry out its obligations under this Agreement, as described in our Privacy Policy provided in Exhibit B. However, Valency:

4.4.1. May observe and report back to Customer on Customer’s usage of the Subscription Service, and make recommendations for improved usage of the Subscription Service;

4.4.2. May aggregate and anonymize Customer data and publish the information, provided the information is from more than one Customer and does not identify Customer;

4.5. Valency will use industry-standard technical and organizational measures to keep Customer Data secure and to protect it against accidental loss or unlawful destruction, alteration, disclosure or access; and, will use and process the Customer Data only in accordance with Customer’s commercially reasonable and lawful instructions.

4.6. Valency will use every reasonable effort to ensure that the data centre containing the Customer Data meets the following physical and electronic security requirements: (i) single point of entry; (ii) main access monitored with additional access for emergency purposes only; (iii) surveillance cameras in facility; (iv) access validation with identity check; (v) access only to persons on Valency approved access list; (vi) log-in validation; (vii) creation of accounts only as verified by Valency or sub-contracted hosting provider; (viii) access to servers via encrypted means; and, (ix) servers running behind secure firewall.

5. Subscription Service Warranties. Valency warrants that (i) the Subscription Service will function substantially as described in the Documentation; and (ii) Valency owns or otherwise has the right to provide the Subscription Service to Customer under this Agreement. The remedies set out in this section are Customer’s exclusive remedies for breach of either warranty.

5.1. If the Subscription Service does not function substantially in accordance with the Documentation, Valency shall, at its option, either (i) modify the Subscription Service to conform to the Documentation; or (ii) provide a workaround solution that will reasonably meet Customer’s requirements. If neither of these options is commercially feasible, either party may terminate the relevant Order Form under this Agreement, in which case Valency shall refund to Customer all prepaid subscription fees to Valency for unused Subscription Service under the relevant Order Form.

5.2. If the normal operation, possession or use of the Subscription Service by Customer is found to infringe any third party United States intellectual property right or Valency believes that this is likely, Valency shall, at its option, either (i) obtain a license from such third party for the benefit of Customer; (ii) modify the Subscription Service so that they
no longer infringe; or (iii) if neither of these options is commercially feasible, terminate the relevant Order Form under this Agreement, in which case Valency shall refund to Customer all prepaid subscription fees to Valency under the relevant Order Form for unused Subscription Service.

5.3. However, Valency has no warranty obligations for problems in the Subscription Service caused by any third party software or hardware, by accidental damage or by other matters beyond Valency’s reasonable control.

6. Term of Agreement. This Agreement will start on the Subscription Term Start Date of the associated Order Form and ends when Valency is no longer obliged to provide Customer with Subscription Service under any Order Forms or until terminated pursuant to Section 8.

7. Payments. Customer must pay the fees listed in the relevant Order Form to receive uninterrupted Service.

7.1. Valency reserves the right to suspend all services if payment is not received. Service will be reinstated upon receipt of payment.

7.2. All Subscription Service fee payments are due per the terms of the Order Form.

8. Termination and Suspension.

8.1. Either party may terminate rights granted under a particular Order Form if the other party breaches any material term of the Order Form (including a material term of this Agreement insofar as it applies to the Order Form) and the breach is not cured within 30 days of written notice.

8.2. If service is suspended by Valency as a result of conditions in Section 8, Customer will be refunded for the imposed service period outage upon Valency receiving all payments due as outlined in Section 7.

9. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE SUBSCRIPTION SERVICE IS PROVIDED WITH NO OTHER WARRANTIES OF ANY KIND, AND VALENCY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. VALENCY DOES NOT WARRANT THAT THE
USE OF THE SUBSCRIPTION SERVICE WILL BE UNINTERRUPTED OR ERROR- FREE.

10. Limitation of Liability. EXCEPT FOR VALENCY’S LIABILITY UNDER SECTION 12, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF GOODWILL, WORK
STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, LOST OR CORRUPTED DATA, LOST PROFITS, LOST BUSINESS OR LOST OPPORTUNITY), OR ANY OTHER SIMILAR DAMAGES UNDER ANY THEORY OF LIABILITY (WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR ANY OTHER THEORY), EVEN IF THE OTHER PARTY HAS BEEN INFORMED OF THIS POSSIBILITY. CUSTOMER ASSUMES ALL RESPONSIBILITY FOR THE SELECTION OF THE SUBSCRIPTION SERVICE, SOFTWARE AND DOCUMENTATION NECESSARY TO ACHIEVE CUSTOMER’S INTENDED RESULTS, AND FOR THE USE AND RESULTS OF THE SUBSCRIPTION SERVICE. EACH PARTY’S
TOTAL LIABILITY FOR ANY DIRECT LOSS, COST, CLAIM OR DAMAGES OF ANY KIND RELATED TO THE RELEVANT ORDER FORM SHALL NOT EXCEED THE AMOUNT OF THE FEES PAID OR PAYABLE BY CUSTOMER TO VALENCY UNDER SUCH RELEVANT ORDER FORM DURING THE SIX (6) MONTHS BEFORE THE EVENT GIVING RISE TO SUCH LOSS, COST, CLAIM OR DAMAGES. THIS LIMITATION ON LIABILITY WAS AND IS AN EXPRESS PART OF THE BARGAIN BETWEEN VALENCY AND CUSTOMER AND WAS A CONTROLLING FACTOR IN THE SETTING OF THE FEES PAYABLE TO VALENCY. HOWEVER, THERE IS NO LIMITATION ON DIRECT LOSS, CLAIM OR DAMAGES ARISING AS A RESULT OF (A) AN INFRINGEMENT OF VALENCY INTELLECTUAL PROPERTY RIGHTS, (B) A BREACH BY EITHER PARTY OF SECTION 12 OF THIS AGREEMENT, OR (C) IN CONNECTION WITH A PARTY’S INDEMNIFICATION OBLIGATIONS.

11. Confidentiality.

11.1. The Subscription Service, Software and Documentation contain valuable trade secrets that are the sole property of Valency, and Customer agrees to use its reasonable commercial efforts to prevent other parties from learning of these trade secrets. Customer shall use reasonable commercial efforts to prevent unauthorized access to or duplication of the Subscription Service, Software, and Documentation.

11.2. The Customer Data contain valuable trade secrets and confidential information that are the sole property of Customer. Valency will use best efforts to prevent unauthorized access to Customer Data.

11.3. Sections 11.1 and 11.2 do not apply to any information that

11.3.1. is now, or subsequently becomes, through no act or failure to act on the part of receiving party (the “Receiver”), generally known or available;

11.3.2. is known by the Receiver at the time of receiving such information, as evidenced by the Receiver’s records;

11.3.3. is subsequently provided to the Receiver by a third party, as a matter of right and without restriction on disclosure; or

11.3.4. is required to be disclosed by law, provided that the party to whom the information belongs is given prior written notice of any such proposed disclosure.

12. Indemnification by Valency. Valency hereby indemnifies, defends and holds harmless Customer, its affiliates, directors and employees from any damages finally awarded against Customer (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third party suit, claim or other legal action alleging that the use of the Subscription Service and Documentation by Customer infringes any copyright, trade secret or United States patent, (“Legal Action”). Valency assumes the defense of the Legal Action.

12.1. However, Valency shall have no indemnification obligations for any Legal Action arising out of:

12.1.1. a combination of the Subscription Service with software or service not supplied, or approved in writing by Valency;

12.1.2. any refusal by Customer use a non-infringing version of the Subscription Service offered by Valency under Section 5. Section 5 and this section state the entire liability of Valency with respect to any intellectual property infringement by the Subscription Service or Software.

12.2. Customer shall give prompt written notice to Valency of any Legal Action no later than 30 days after first receiving notice of a Legal Action, and shall give copies to Valency of all communications, notices and/or other actions relating to the Legal Action. Customer gives Valency the sole control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of Valency and shall give Valency such assistance as Valency reasonably requests to defend or settle such claim. Valency will conduct its defense at all times in a manner that is not adverse to Customer’s interests.
Customer may employ its own counsel to assist it with respect to any such claim. Customer will bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Valency or its counsel, or because Valency fails to assume control of the defense. Customer will not settle or compromise any Legal Action without Valency’s express written consent. Valency shall be relieved of its indemnification obligation under Section 12 if Customer materially fails to comply with Section 12 and such material failure prejudices Valency’ defense of the Legal Action.

13. Indemnification by Customer. Customer indemnifies, defends and holds harmless Valency, its affiliates, directors, and employees from any damages finally awarded against Valency (including, without limitation, reasonable costs and legal fees incurred by Customer) arising out of any third party suit, claim or other legal action (including but not limited to any
governmental investigations, complaints and actions) in connection with the Customer Data as used in connection with the Services, including, without limitation, any action for infringement of any trademark, copyright, trade secret, right of publicity or privacy (including defamation), patent or other proprietary right with respect to the Customer Data as used in
connection with the Services.

13.1. Valency shall give prompt written notice to Customer of any Legal Action, and shall give copies to Customer of all communications, notices and/or other actions relating to the Legal Action. Valency shall give Customer the sole control of the defense of any Legal Action, shall act in accordance with the reasonable instructions of Customer and shall give Customer such assistance as Customer reasonably requests to defend or settle such claim. Customer will conduct its defense at all times in a manner which is not adverse to Valency interests. Valency may employ its own counsel to assist it with respect to any such action. Valency will bear all costs of engaging its own counsel, unless engagement of counsel is necessary because of a conflict of interest with Customer or its counsel, or because Customer fails to assume control of the defense. Valency will not settle or compromise any Legal Action without Customer’s express written consent.

14. Publicity. Neither Party will issue a public statement or press release regarding this Agreement without the prior consent of the other Party. Notwithstanding the foregoing, Valency may, during the Subscription Term, reference Customer as a user of the Subscription Service.

15. Miscellaneous.

15.1. This Agreement together with the Order Form represents the entire agreement of the Parties, and supersedes any prior or current understandings, whether written or oral. If there is a conflict between the Agreement and an Order Form, this Agreement will prevail.

15.2. This Agreement may not be changed or any part waived except in writing by the parties.

15.3. This Agreement will be governed by the laws of Ontario, Canada. The parties consent to the exercise of exclusive jurisdiction by the province or federal courts in Ontario, Canada for any claim relating to this Agreement.

15.4. Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement without the prior written consent of Valency.

 

Exhibit A. Support Services

1. Exhibit Definitions.

Customer Core Group” means Customer’s employees who have been trained on the Subscription Service and who are familiar with Customer’s business practices.

Customer User Community” means all Customer’s Users.

Downtime” means any period during which the Customer in unable to access or use the Subscription Service because of an Issue, excluding Scheduled Downtime.

Issue” means a single, reproducible issue or problem materially or significantly affecting the functionality of the Subscription Service.

Scheduled Downtime” means a time period identified by Valency not to exceed 1 hour per calendar month, in which Valency intends to have any downtime of the Subscription Service or related systems.

User Administration Support” means issues that impact the usability of the Subscription Service and are addressable through the adjustment of User access privileges, processes or procedures.

2. Support Services. Valency will provide support services to assist Customer in resolving Issues (“Support Services”). Support Services do not include (a) visits to Customer’s site; (b) any professional services (“Professional Services”) associated with the Subscription Service, including, without limitation, any custom development, benchmarking, training and knowledge transfer; or (c) the set‐up, configuration and use of the Subscription Service.

The Customer will ensure that the Customer User Community addresses all Issues through the Customer Core Group. The Customer Core Group will:

  • Validate and recreate Issues;
  • Resolve procedural Issues;
  • Provide first‐level User Administration Support;
  • Report all unresolved problems to the Valency support team; and,
  • Provide additional information for testing and analysis purposes to assist with Issue resolution.

3. Scope of Support Services. Valency obligations do not extend to Issues or errors caused by:

a. Third party hardware or software;

b. Use of the Subscription Service in violation of the terms of the Agreement;

c. Use of the Subscription Service other than in accordance with any user Documentation or the reasonable instructions of Valency;

d. Services, circumstances or events beyond the reasonable control of Valency, including, without limitation, any Force Majeure events, the performance and/or availability of local ISPs employed by Customer, or any network beyond the
demarcation or control of Valency.

4. Case Prioritization. Any issues reported by Customer to Valency and accepted by the Valency support team will be classified as an Issue or a Request and assigned a severity level. The following severity levels and their meanings are used herein:

  • Level 1 – Urgent. An Issue that renders the Subscription Service completely inoperative for all Users.
  • Level 2 – High. An Issue that materially impairs substantial features of the Subscription Service for many Users; no reasonable workaround is available.
  • Level 3 – Normal. An Issue that impairs a feature of the Subscription Service for a few Users; a reasonable workaround is available.

5. Response Times. Valency will provide an acknowledgement of a reported issue to Customer and respond within the target response time frames specified below (“Response”). The Response will include the severity level assigned to the case, any actions taken, immediate resolution if available, and any escalation plans.

Hours of Operation 8:30 am – 5:00 PM EST/EDT
Monday – Friday
Support Access Method Web/Phone
Support Response Method Email/Phone
Number of Support Requests Unlimited

Target Response Times*

Severity Level Inquiry
Acknowledgement
Status
Update
Inquiry
Closure
Level 1 – Urgent 4 hours 12 hours 48 hours
Level 2 – High 24 hours 48 hours 7 days
Level 3 – Normal 48 hours 7 days 30 days

* All time periods are based on business hours.

Resolution to an Issue is subject to verification and reproduction of the Issue by Valency, with Customer’s reasonable assistance verifying and reproducing the Issue. Resolution(s) may include a temporary workaround, patch or bypass supplied by Valency, or a computer or operating routine. Once Valency has resolved an Issue, Customer will be required to test and accept the fix and/or work on data Issues if data has been impacted.

6. Scheduled Downtime. Valency expects to upgrade and update the Subscription Service on an ongoing basis. Valency will endeavour to use best efforts to provide at least 24 hours prior notice before implementing Scheduled Downtime.