Terms of Services for Clients
THESE OPTABLE TERMS OF SERVICES (“AGREEMENT”) APPLY TO YOUR USE OF THE OPTABLE SERVICES (DEFINED BELOW) UNLESS YOU HAVE ENTERED INTO A MASTER SERVICES AGREEMENT WITH OPTABLE TECHNOLOGIES INC.
BY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU ARE ACCEPTING ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, YOU MAY NOT USE ANY OPTABLE SERVICES. YOU AGREE THAT THIS AGREEMENT IS ENFORCEABLE LIKE ANY WRITTEN AGREEMENT SIGNED BY YOU AND YOU EXPRESSLY AGREE TO THE ELECTRONIC SIGNATURE OF THIS AGREEMENT.
IF YOU ARE USING ANY OPTABLE SERVICES AS AN EMPLOYEE, CONTRACTOR, OR AGENT OF A CORPORATION, PARTNERSHIP OR SIMILAR ENTITY, THEN YOU MUST BE AUTHORIZED TO SIGN FOR AND BIND SUCH ENTITY IN ORDER TO ACCEPT THE TERMS OF THIS AGREEMENT, AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO DO SO. THE RIGHTS GRANTED UNDER THIS AGREEMENT ARE EXPRESSLY CONDITIONED UPON ACCEPTANCE BY SUCH AUTHORIZED PERSONNEL.
AGREEMENT
These Optable Terms of Services (the “Agreement”) are entered by and between Optable Technologies Inc., a Quebec corporation having its head office at 700-1435 rue Saint-Alexandre, Montréal, Québec, H3A 2G4, Canada (“Optable”), and the entity or person that has executed a Statement of Work (“SOW”) with Optable to use the Optable Services (“Client” or “you”).
The “Effective Date” of the Agreement is the date which is the earlier of (a) Client’s initial access to any Optable Services through any online provisioning, registration or order process or (b) the effective date of the first SOW referencing this Agreement.
1. Definitions.
In this Agreement, the following terms have the following meanings:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with a party, with “control” meaning ownership of 50% or more of the voting equity interests, or the power to otherwise direct the affairs of such party.
“Client Data” means any data that Client owns, licenses or possesses, and provides to Optable for processing for the provision of Optable’s Services, and includes any Client Personal Data. For clarity, Client Data does not include any data that was or is independently obtained by Optable.
“Authorized End Users” means the individuals whom Client permits to use the Services and Deliverables.
“Client Personal Data” means any Personal Data (as defined in the DPA) that the Client discloses or transfers to Optable under this Agreement or that the Client or Authorized End Users submit into the Managed Services, or that is otherwise processed by Optable in the performance of its obligations under this Agreement. “Client Personal Data” does not include Personal Data of Authorized End Users that relates to their use of the Services, in particular Personal Data collected for the creation of a user account and Personal Data incidentally captured by Optable’s system operations logs and security systems, which is processed in accordance with Optable’s Privacy Policy.
“DCN” means a secure data collaboration node which is a service hosted in Optable’s secure cloud environment accessible by a single party (including permissioned authorized users and machines) via a graphical user interface and a command line utility, to store private identity graphs, user trait data, audience metadata, source and destinations credentials, and authorized users and permissions.
“DPA” means the Data Processing Addendum.
“Deliverables” means any work product (such as software, documents or other tangible items) Optable prepares for and delivers to Client in the course of performing the Non-Subscription Services, as expressly identified in a SOW. For clarity, “Deliverables” excludes work product resulting from the performance of the Managed Services.
“Documentation” means the Optable documentation, including in digital format, as may be updated from time to time.
“Enterprise DCN” means a DCN that can invite and collaborate with partners, supports real-time data streaming (via API or SDK), and can use all available destinations to activate or export audiences.
“Flash Partner” means any third party invited by the Client to, following Optable’s invitation procedure, connect with Client’s Enterprise DCN.
“Managed Services” means the Optable Data Collaboration Platform, APIs, other functions and/or infrastructure made available for to Client under a subscription, and to which Optable gives Client access on a remote, managed, hosted and/or software as a service (SaaS) basis, as specified in a SOW. For more information on the Optable Data Collaboration Platform, visit the Optable Documentation.
“Intellectual Property” means all know-how, concepts, techniques, methods, methodologies, tutorials, FAQs, ideas, templates, processes, software, source code and object code, compilations, devices, infrastructure, information, interfaces, prototypes, trademarks, trade names, logos, copyrights, patents, trade secrets, utility models, Documentation and works of authorship as well as all other intellectual property and/or proprietary rights of any type, as may exist now and/or hereafter come into existence under the laws of any state, province, country, jurisdiction, or otherwise, whether registered or unregistered.
“Non-Subscription Services” means the services provided by Optable to Client under this Agreement that are documented in a SOW and that are not included in the definition of Managed Services.
“Personal Data” has the meaning set forth in the DPA.
“Services” means services provided or performed by Optable for Client, or made accessible to Client, including but not limited to the Managed Services and the Non-Subscription Services.
2. Agreement and SOW.
By executing any SOW together, the parties are bound by reference by the terms and conditions of this Agreement. Each SOW creates a separate and binding contract between the parties. Affiliates of either party may execute a SOW under this Agreement, provided that by doing so, they also become bound by reference by the terms and conditions of this Agreement. With respect to a SOW executed by an Affiliate, all references to the Affiliate’s related party in this Agreement will be deemed to refer to the Affiliate unless the context otherwise indicates, and the Affiliate agrees to abide by all such terms.
3. Services and Deliverables.
Optable will perform for Client certain Services (including making accessible the Managed Services to Client) and, if applicable, may provide certain Deliverables, in each case as specified in a SOW. All Services will be performed, and Deliverables developed, by Optable and its Affiliates’ employees, independent consultants and/or subcontractors, agents or representatives (“Personnel”) as determined by Optable.
3.1. Access and Use of the Managed Services.
Subject to this Agreement, during the Term, Client is granted a subscription to access and use the Managed Services in a limited, non-exclusive, non-transferable, worldwide manner, solely for Client’s internal use and solely by Authorized End Users.
3.2. Restricted License for Deliverables and Documentation.
Subject to this Agreement, Optable grants to Client, during the Term, a non-exclusive, worldwide, royalty-free license to (i) use the Deliverables solely for Client’s internal use and solely as needed to support the Services (to the extent Client does not own the Deliverables in accordance with Section 5.4 of this Agreement), and (ii) use, display, reproduce, and distribute any Documentation to any Authorized End Users solely for Client’s internal use and solely as needed to support the Services.
3.3. No Sublicense or Transfer.
Client may not sublicense or transfer any rights provided for or granted under this Section 3 except as permitted under Section 15.4 (Assignment).
3.4. Data Location.
Optable will process and store Client Data in the region selected by the Client. By using the Services, Client consents to this processing and storage of Client Data.
3.5. Excusable Delay.
Optable’s delay or nonperformance of its obligations under this Agreement shall be excused to the extent caused by Client’s failure to perform its obligations under this Agreement. Optable will provide Client with reasonable notice of such non-performance or delay and will use commercially reasonable efforts to continue to perform. Client shall continue to pay Optable for Services actually performed and Deliverables actually delivered by Optable prior to and during any such period.
3.6. Partner Invitation.
Any Flash Partner, invited by the Client who wishes to collaborate with the latter shall abide by Optable’s Terms of Services for Invited Persons, which will be delivered to the relevant Flash Partner for its acceptance before commencement of the collaboration. If the Client wishes to terminate the collaboration, the Client will be responsible for the termination of the collaboration relationship with the Flash Partner in the Client’s DCN .
4. Deliverables Acceptance.
Where applicable, Client will be deemed to have accepted a Deliverable if Client does not notify Optable in writing within thirty (30) days after delivery specifically identifying the manner in which the Deliverable fails to materially comply with the specifications set forth in the SOW.
5. Intellectual Property.
5.1. No Grant.
Except as expressly set forth in this Agreement, this Agreement does not grant either party any rights, title or interest, implied or otherwise, to the other party’s content or any of the other party’s Intellectual Property.
5.2. Client Intellectual Property.
Client or its third-party licensor, as applicable, owns and retains all right, title and interest in and to any Intellectual Property owned prior to or created independently of this Agreement, including Client Data, and any updates or modifications to the foregoing, that Client provides to Optable under this Agreement (“Client IP”), unless expressly provided for otherwise in a SOW. Client will obtain any relevant consents and licenses necessary for Optable and its Personnel to use such Client IP as required to perform its obligations under this Agreement, and Client grants Optable and its Personnel a perpetual, non-exclusive, worldwide, royalty-free, fully paid-up license to access, download, receive, store, reproduce, modify, use, and prepare derivative works of Client IP as required for Optable to perform such obligations.
5.3. Optable Intellectual Property.
Optable retains exclusive ownership of all right, title and interest in and to any Intellectual Property, other than Deliverables, that it uses or develops either while providing or performing the Services or independent of this Agreement and any derivative works, enhancements and/or modifications to the foregoing (“Optable IP”). Subject to Section 5.4, Client does not obtain any rights in Optable IP. Client will not reverse engineer, disassemble or decompile, or attempt to discover or recreate the source code to, the Services or any Optable IP or engage in or permit any use, sublicensing, distribution or other activity with Optable IP that is not authorized in writing by Optable. Optable is free to use, for any purpose, its general knowledge, skills and experience, and any ideas, concepts, know-how, methodologies and techniques acquired or used in the course of providing the Services, and is not precluded from developing for itself, or for others, materials that are competitive with or similar to any Deliverables.
5.4. Rights in Deliverables.
Except as expressly provided in a SOW, Optable owns the Deliverables, including any intellectual property rights therein. Where a SOW expressly provides that Client owns a Deliverable, (i) subject to Client’s compliance with this Agreement (including payment of Fees), Optable will assign and transfer the ownership in the Deliverables, and (ii) on Client’s request and at its expense, Optable will reasonably assist Client in securing Client’s rights in Deliverables. Notwithstanding the foregoing, Optable IP will continue to belong exclusively to Optable. In the event any part of Optable IP is inseparably embedded in a Deliverable, Optable grants to Client a worldwide, perpetual, irrevocable, non-exclusive, royalty-free, fully paid-up right and license (with the right to sublicense) to exploit for any purpose any part of such Optable IP embedded in such Deliverable.
5.5. Third-party and Licensed Products.
This Agreement does not grant Client any rights in or to any Optable licensed product, third-party product or open source, community or other free code or libraries of any type (including any code which is made generally available on the internet without charge).
6. Confidentiality.
Each party may have access to information that relates to the other party’s business activities, including but not limited to business and marketing plans, product strategies, trade secrets, Intellectual Property, pricing information, product designs, capabilities, specifications, solution design documents, flowcharts, presentations, and analysis reports or results from testing of any products, research, development, products, services, processes, data, technical knowledge, and any information concerning a party’s clients, prospects, or vendors, which is identified by the disclosing party as confidential or is reasonably understood to be confidential (“Confidential Information”). Each party will protect the confidentiality of the other party’s Confidential Information in the same manner as it protects its own similar information, but in any event using a reasonable standard of care. Each party will use the other party’s Confidential Information only as necessary to perform its obligations under this Agreement and will restrict access to such Confidential Information to its personnel who are engaged in the performance, receipt or use of the Services, provided that such personnel are bound by obligations of confidentiality no less protective than under this Agreement. Except for any license or right expressly granted under this Agreement, each party reserves all right, title and interest in or to its Confidential Information. Notwithstanding the foregoing, Confidential Information does not include information that was: (a) previously known to a party without an obligation of confidentiality; (b) independently developed by or for a party without use of the other party’s Confidential Information; (c) acquired by a party from a third party which was not, to such party’s knowledge, under an obligation of confidentiality; or (d) publicly available through no breach of this Agreement. If a party receives a subpoena or other valid legal process requiring disclosure of the other party’s Confidential Information, such party may comply to the extent required by law and will, unless required by law, promptly notify the other party and reasonably cooperate (at the other party’s request and expense) in opposing such a demand.
7. Privacy and Data Protection.
The Parties agree that all processing of Personal Data carried out in connection with the provision of the Services set out in this Agreement shall be governed by the provisions of the DPA which is incorporated by reference, and forms part of, this Agreement. The parties shall comply with their respective obligations under the DPA.
8. Restrictions and Acceptable Use.
Except as expressly provided for in an applicable SOW, Client shall not, and shall not to allow third parties, to: (a) make the Services or Deliverables available to, or use the Services or Deliverables for the benefit of, any third party, (b) sell, resell, license, sublicense, host, reproduce, distribute, rent or lease the Services or Deliverables, or include the Services or Deliverables in a timeshare, service bureau or outsourcing offering, (c) use the Services or Deliverables for any unlawful, invasive, infringing, defamatory or fraudulent purpose, to store, transmit or distribute infringing, libelous or otherwise unlawful or tortious material, or to store, transmit or distribute material in violation of third-party privacy rights, (d) use the Services or Deliverables to store, transmit or distribute malicious code, (e) disable, interfere with or disrupt the integrity or performance of the Services, the equipment used to provide the Services or third-party data or content contained therein, (f) interfere with the use of the Services by other clients of Optable, authorized resellers, or other authorized users, (g) attempt to gain unauthorized access to the Services or related systems or networks, (h) permit any third party to access the Services except as permitted herein or in a manner consistent with the functionality of the Services, (i) modify, translate, or create derivative works based on the Services, (j) copy the Services or Deliverables or any part, feature, function or user interface thereof except as permitted herein, (k) use the Services or Deliverables, or any interfaces provided with the Services or Deliverables, to access any other Optable product or service in a manner that violates the terms of service of such other Optable product or service, (l) frame or mirror any part of the Services, (m) remove any proprietary notices or labels, (n) reverse engineer, decompile, disassemble, scrape or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or Deliverables or any software, documentation or data related to the Services or Deliverables, (o) access the Services or the Deliverables in order to (i) build a similar or competitive product or service, or (ii) copy any features, functions or graphics of the Services or the Deliverables. The restrictions set forth in this Section 8(a) and (b) do not apply with respect to the Deliverables that Client owns pursuant to Section 5.4.
9. Warranties and Limitations.
9.1. Mutual Warranties.
Each party represents and warrants to the other that: (i) it has full power and authority to enter into and perform the Agreement; (ii) the execution and delivery of the Agreement have been duly authorized; (iii) the Agreement does not violate any law, statute, or regulation and does not breach any other agreement or covenant to which it is a party or is bound; (iv) its own Confidential Information and its Personal Data has been legally obtained; (v) the provision of its Confidential Information and its Personal Data to the other does not violate any laws or agreements with third parties; and (vi) it will otherwise comply with all applicable laws, rules, and regulations.
9.2. Client Warranties.
For any Client Data, including but not limited to Client Personal Data, transferred or disclosed to Optable by Client or by a third party on Client’s behalf, Client represents and warrants (in addition to any representations or warranties in a given SOW) that: (i) it fully owns or has the authority to use such Client Data as set forth in this Agreement and any SOW, and that in obtaining or collecting Client Data, it did not violate the law, any applicable regulations, nor any self-regulatory guidelines (such as those promulgated by the Digital Advertising Alliance, the Digital Advertising Alliance of Canada or the European Interactive Digital Advertising Alliance), or the rights of any third party, (ii) it shall not instruct Optable to process or to take any other action with such Client Data that Client knows or should reasonably know would violate an applicable law, Client’s own published privacy policies, or any other published privacy policies or notice and disclosure statements under which such Client Data was collected, and (iii) it has complied with all valid user requests, including without limitation, requests to opt out of the placement of cookies on user browsers, requests withdrawing consent for use of Personal Data, and requests to access Personal Data.
9.3. Optable Warranties.
Optable warrants that it will perform the Services in a good and workmanlike manner. Optable will re-perform Services that do not materially meet the foregoing warranty if Client notifies Optable in writing within thirty (30) days of performance. Optable warrants that the Deliverables will materially conform to the requirements set forth in the SOW for thirty (30) days from delivery to Client, and will use commercially reasonable efforts to correct any non-conforming Deliverable if Client notifies Optable in writing of the noncompliance within such period. The above warranties do not apply to any failure to perform or noncompliance resulting from: (a) Client IP; (b) third-party products; (c) Optable’s reliance on a Client responsibility; (d) Client’s use of Deliverables in production prior to acceptance or other than in accordance with applicable documentation or design; (e) modification, damage or other action of Client or any third party; or (f) combination of a Deliverable with hardware, software, technology, services or other items not supplied or approved by Optable; or (g) Client’s failure or refusal to update Deliverables as and when new releases, versions or patches of such Deliverables are made available to Client by Optable. Optable does not warrant that the Services, Deliverables or other items furnished by Optable are free from bugs, errors, defects or deficiencies. With respect to any data Services or Deliverables, Client specifically acknowledges that some errors or inaccuracies in data Services or Deliverables may arise from the source of the applicable data and Optable does not warrant the quality of such data or provide any remedy for such inaccuracies or errors. The remedies set forth in this Section 9.3 are Client’s sole and exclusive remedies and Optable’s sole and exclusive liability for breach of the warranties set forth in this Section 9.3.
9.4. DISCLAIMER.
EXCEPT AS SET FORTH IN SECTION 9.3 AND TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OPTABLE DOES NOT MAKE ANY OTHER REPRESENTATIONS, WARRANTIES OR COVENANTS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO THE SERVICES, DELIVERABLES, OPTABLE IP OR OTHER ITEMS PROVIDED BY OPTABLE (INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR USE, QUALITY, ACCURACY, TITLE, OR NONINFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE), AND THE SERVICES, DELIVERABLES, OPTABLE IP AND OTHER ITEMS PROVIDED BY OPTABLE TO CLIENT ARE PROVIDED STRICTLY ON AN “AS IS” BASIS. Except as the parties agree in writing, Optable’s warranties, obligations and liabilities and Client’s remedies for third-party products are limited to any recourse available against such third party.
10. Indemnity.
10.1. Infringement and Data Protection.
Each party (the “Indemnifying Party”) will defend the other party and its Affiliates, and their directors, officers and employees (each an “Indemnified Party”), against any third-party claim, action, or liability (including damages, costs, expenses, and reasonable attorneys’ fees) and will indemnify and hold harmless the Indemnified parties against any costs or damages that may be awarded in a final judgment or agreed to by the Indemnifying Party in a settlement of such claims, to the extent caused by: (a) where Optable is the Indemnifying Party, a claim that any Deliverable provided by Optable to Client pursuant to this Agreement (i) infringes a copyright or trademark held by the third party; (ii) infringes the third party’s Canadian, U.S. or European patent existing as of the date of delivery of such Deliverable, or (iii) constitutes misappropriation or unlawful disclosure or use of the third party’s trade secrets; or (b) where Client is the Indemnifying Party, a claim that any Client IP or Client Data provided to Optable pursuant to this Agreement (i) infringes a copyright or trademark held by the third party; (ii) infringes the third party’s Canadian, U.S. or European patent existing as of the date of delivery or Optable’s first use of Client IP, (iii) constitutes misappropriation or unlawful disclosure or use of the third party’s trade secrets, or (iv) violates the DPA (each an “Indemnified Claim(s)”).
10.2. Procedure; Remedies.
The Indemnified Party must promptly notify the Indemnifying Party in writing of any Indemnified Claim and provide the Indemnifying Party reasonable cooperation and full authority to defend or settle the Indemnified Claim, provided that such settlement may not impose any obligation (monetary or otherwise) on the Indemnified Party without its consent. In the event of an Indemnified Claim regarding a Deliverable, Optable may, at its sole discretion, either: (a) procure the right for Client to continue using the Deliverable or any infringing part of same in accordance with the terms of this Agreement, (b) replace the Deliverable with a non-infringing equivalent, (c) modify the Deliverable so that it becomes non-infringing, or (d) request the return of the Deliverable and refund to Client the Fees paid for such Deliverable. Optable will have no liability for Indemnified Claims to the extent such alleged infringement is based on: (i) Client’s modification or use of the Deliverable other than as authorized by the SOW; (ii) Client’s failure to use corrections or enhancements to the Deliverable that Optable made available; (iii) Client’s combination of the Deliverable with any product, technology or information not supplied or approved by Optable; (iv) Client’s distribution or use of the Deliverable for the benefit of third parties; (v) Optable’s compliance with Client specifications or requirements; or (vi) any third-party product, Client responsibility or Client IP. The remedies in this Section 10 are the sole and exclusive remedies and each Indemnifying Party’s entire liability with respect to infringement.
11. Limitations of Liability.
11.1. No Consequential Damages.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, SPECIAL, INDIRECT, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, REVENUE, REPUTATION, DATA, SHARE VALUE, BUSINESS OR USE), REGARDLESS OF THE FORM OF ACTION (WHETHER IN AN ACTION IN CONTRACT, TORT, EXTRA-CONTRACTUAL LIABILITY OR OTHERWISE), WHETHER THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED OR IS REASONABLY FORESEEABLE.
11.2. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW AND EXCEPT IN THE EVENT OF INTENTIONAL OR GROSS FAULT, IN NO EVENT SHALL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY FOR CLAIMS ARISING FROM OR IN CONNECTION WITH THIS AGREEMENT, REGARDLESS OF THE THEORY OF LIABILITY (WHETHER IN AN ACTION IN CONTRACT, TORT, EXTRA-CONTRACTUAL LIABILITY OR OTHERWISE), EXCEED THE GREATER OF $250,000 CANADIAN DOLLARS OR THE FEES ACTUALLY PAID BY CLIENT TO OPTABLE UNDER THE APPLICABLE SOW IN THE SIX (6) MONTHS PRECEDING THE CLAIM, EXCEPT THAT: (I) THE FOREGOING LIMITATION DOES NOT APPLY WITH RESPECT TO CLIENT’S PAYMENT OBLIGATIONS UNDER THIS AGREEMENT AND WITH RESPECT TO CLIENT’S INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 10.1; AND (II) THE FOREGOING LIMITATION SHALL BE DOUBLED (2X) WITH RESPECT TO OPTABLE INDEMNIFICATION OBLIGATIONS AS SET FORTH IN SECTION 10.1.
12. Term and Termination.
12.1. Term.
The term of this Agreement commences on the Effective Date and continues until terminated as set forth below (the “Term”).
12.2. Termination.
Either party may immediately terminate this Agreement upon written notice to the other party if no SOW is then in effect or scheduled to come into effect. Either party may terminate a SOW on the terms set forth in such SOW. Except as explicitly provided herein, Optable may not terminate a SOW without cause for a period of twenty-four (24) months following its effective date. Either party may also terminate this Agreement or any SOW if the other party does not cure a material breach of its obligations hereunder within thirty (30) days of written notice by such party identifying the breach. Either party may immediately terminate this Agreement in the event that the other party (a) becomes insolvent or unable to pay its debts as they mature; (b) makes an assignment for the benefit of its creditors; or (c) seeks relief, or if proceedings are commenced against such other party or on its behalf, under any bankruptcy, insolvency or debtors’ relief law.
12.3. Effects of Termination.
Upon termination of a SOW or this Agreement for any reason:
Optable will return to Client any Client IP in its possession or under its control;
Optable will have no further obligation to perform Services or provide Deliverables under any terminated SOW; and
Client will pay all Fees and other amounts payable for Services performed and Deliverables delivered under any terminated SOW through the termination date.
If Optable terminates this Agreement due to Client’s breach of its obligations hereunder, and notwithstanding Section 5.3, Client’s rights in Deliverables for which Optable has not received full payment will terminate, and Client will stop using such Deliverables and return them to Optable.
12.5. Suspension.
Optable may suspend or discontinue the performance of the Services or the provision of the Deliverables if, in its reasonable judgment, the performance of the Services or the provision of the Deliverables would violate any applicable law, rule, or regulation. Such action shall not constitute a default under this Agreement. In the event of a suspension, Optable will refund any fees prepaid by Client for Services not performed or Deliverables not delivered.
13. Survival.
Sections 5 (Intellectual Property), 6 (Confidentiality), 7 (Privacy and Data Protection), 8 (Restrictions and Acceptable Use), 10 (Indemnity), 11 (Limitation of Liability) and any other provision of this Agreement which are by their nature intended to survive the expiration or termination of this Agreement will survive such expiration or termination of this Agreement for any reason.
14. Dispute Resolution.
In the event of a dispute arising out of or relating to this Agreement, the parties will consult and negotiate in good faith to reach a satisfactory solution within thirty (30) days following the receipt by a party of a notice from the other party regarding such dispute.
15. Miscellaneous.
15.1. Notices.
Any notice or other communication provided under this Agreement will be in writing, addressed to such party at the address set forth above or as otherwise notified by the party. Such notice or communication will be deemed to have been given (or received by the other party) (a) on the first business day following the date it has been sent, if sent by courier or a recognized shipping service; or (b) five (5) business days after being sent by pre-paid registered mail to the other party, with acknowledgement of receipt.
15.2. Independent Contractors.
The parties acknowledge and agree that each party to this Agreement is an independent contractor and not a partner or agent of the other party and neither party is authorized to enter into or incur any agreement, contract, commitment, obligation or liability in the name of or on behalf of the other party. Neither this Agreement nor the performance of Services shall, or be deemed to, create a partnership, joint venture, agency, fiduciary or employment relationship or any other legal relationship between the parties. Each party’s obligations to the other hereunder are entirely contractual in nature. Neither party shall be responsible for the acts or defaults of the other party or any of the other party’s employees or agents. The parties acknowledge and agree that the relationship is non-exclusive and Optable may represent, perform services for and provide deliverables to (whether or not similar to the Services and Deliverables), and contract with, as many additional clients, persons or companies as Optable sees fit in its sole discretion.
15.3. Force Majeure.
Neither party will be liable for any delay or failure in its performance under this Agreement due to any cause beyond its reasonable control, including acts of war or terrorism, acts of God, earthquake, flood, embargo, riot, sabotage, labor shortage or dispute, governmental act (including a governmental shutdown) or failure of the Internet, provided that payment obligations are not excused by any such condition. Without limiting the foregoing, if Client fails to perform any of its responsibilities under this Agreement, Optable is excused from a failure to perform any of its obligations affected by Client’s failure. The impacted party will promptly notify the other party of the occurrence of such cause and will make reasonable commercial efforts to promptly mitigate and correct or overcome the delay or failure to perform. The parties’ obligations will be automatically extended for the period of any such delay.
15.4. Assignment.
Neither party may assign this Agreement or any SOW without the written consent of the other party, which will not be unreasonably withheld or delayed; provided, however, that either party may assign this Agreement or any SOW to an Affiliate or a successor by way of merger, acquisition, consolidation or corporate reorganization on written notice to the other party. This Agreement will be fully binding upon, inure to the benefit of and be enforceable by the parties and their successors and assigns.
15.5. Governing Law; Venue.
Unless otherwise specified in the SOW, this Agreement will be interpreted, construed and enforced in accordance with the laws of the Province of Ontario (Canada), without reference to its rules relating to choice of law. The parties irrevocably submit to the exclusive jurisdiction of the courts of the Province of Québec and the courts of the City of Toronto (Ontario). This Agreement excludes the application of United Nations Convention on Contracts for the International Sale of Goods.
15.6. Compliance with Laws.
Each party shall carry out its obligations contemplated hereby and shall otherwise deal with the other party in conformity with all applicable laws, rules and regulations of all governmental authorities.
15.7. Export.
Each party will comply with all export control and sanctions laws applicable to its performance under this Agreement, including the use and transfer of products, software, technology or services. Prior to providing Optable any goods, software or technical data subject to export controls, Client will specify in writing to Optable the nature of the controls and any relevant export control classification numbers.
15.8. Severance.
If any one or more of the provisions of this Agreement or a SOW shall for any reason be held to be invalid, illegal or unenforceable, such provision shall be ineffective only to the extent of such invalidity, illegality or unenforceability, and the validity, legality and enforceability of any such provision in every other respect, and of the remaining provisions contained in this Agreement or the applicable SOW, shall not be affected or impaired thereby.
15.9. Entire Agreement; Interpretation.
The requirements of each SOW are intended to be separate, and the requirements of one SOW do not apply to the Services and/or Deliverables provided or to be provided under another SOW. In the event of a conflict between any provision of this Agreement and any provision of a SOW, the provision of the this Agreement shall prevail, unless the SOW expressly provides otherwise. This Agreement, including all SOWs and all hyperlinks to Optable documents, constitutes the entire agreement, and supersedes any and all prior agreements between the parties with respect to the Services, Deliverables and other items provided under this Agreement. This Agreement cannot be amended or modified except in a writing that specifically refers to this Agreement and is signed by the authorized representatives of each party, except for hyperlinks to Optable documents. Any conflicting or supplemental terms contained in any purchase order, online agreement (whether click-wrap, browse-wrap, click-through or otherwise), or any other agreement not meeting the requirements set forth in this Section are of no force or effect. SOWs may be modified as set forth in the applicable SOW. The delay or failure of either party to enforce the other party’s performance of any provision of this Agreement or exercise any right or remedy under this Agreement will not be interpreted or construed as a waiver of that party’s right to assert or rely upon such provision, right or remedy. This Agreement does not prohibit or restrict (a) either party’s right to perform services for any third party, including services comparable or similar to the Services or (b) the placement of any resources of either party involved in the performance or use of the Services. This Agreement exists for the benefit of the parties only, and only the parties may enforce it, notwithstanding that any Affiliate of a party may be granted any benefit of the Agreement. Except as expressly provided in respect of Affiliates, the parties do not intend for this Agreement to confer any right or benefit on any third party.
15.10. Language.
The parties acknowledge that they have expressly requested that this Agreement and all related documents be drawn up in the English language. Les parties aux présentes reconnaissent qu’elles ont exigé expressément que la présente convention et tous documents qui s’y rattachent soient rédigés en langue anglaise.
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