Subscription Service Agreement

Last Updated: August 7, 2017

This Subscription Service Agreement (the “Agreement”) contains the terms and conditions that govern the access and use of Carve for PDRI Subscription Service (“Subscription Service” as defined below) and is entered into by Valency Inc. (“Valency”) and the customer (“Customer”).  By accessing or using the Subscription Service, Customer agrees to be legally bound by the 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 earlier of the Subscription Term start date in the Order Form or first use of the Subscription Service (“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 for PDRI 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.  Compatible hardware and software is identified in the Documentation.

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, non-transferable (except as provided in Section 15.4), and are for Customer’s and its Affiliate’s internal evaluation of any project where Customer or any of its Affiliates has an equity participation or voting interest of more than 25%.  If the Customer is a contractor or consultant, the Subscription Service may be used for the Customer’s client projects, but the Subscription Service does not extend to the Customer’s client. 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.  Perform load testing of 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.  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 applicable law and 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; (iii) Valency owns or otherwise has the right to provide the Subscription Service to Customer under this Agreement.

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, then Customer 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 upon thirty (30) days written notice to Customer 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 ARISING UNDER SECTION 12, NEITHER PARTY SHALL BE LIABLE TO THE OTHER UNDER THIS AGREEMENT FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, 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. 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. 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, (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 contains 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.  Valency will not access or use, or permit the access or use of, Customer Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement.  Valency will safeguard Customer Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care. Valency will promptly notify Customer in writing any unauthorized disclosure or use of the Customer’s Confidential Information and cooperate with Customer to protect the confidentiality and ownership of all Customer Data, intellectual property rights, privacy rights and other rights therein.

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 Receiver (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 (“Discloser”) 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 arising out of any suit, claim or other legal action alleging that the use of the Subscription Service by Customer infringes any third party’s intellectual property (“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 to 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, 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. Neither party will settle or compromise any Legal Action without the other’s express written consent.

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 provided by Customer as used in connection with the Subscription 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.

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.