Service Agreement

Overview

Last Revised: August 27, 2019

IMPORTANT: Carefully read this Service Agreement (the “Agreement”) before using the Service (as defined below).

This Agreement creates a binding legal agreement between you (“Customer”) and 1216414 BC Ltd (also know as eOmni) with a principal place of business at 2578 – 550 Burrard Street, Vancouver, BC, Canada, V6C 2B5 (“Provider”).

BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT.  You also agree to ensure that anyone who uses the Service using your password or login information abides by this Agreement.

1. Definitions.  As used in this Agreement:
  1. Confidential Information” means all information regarding a party’s business, including, without limitation, technical, marketing, financial, employee, planning and other confidential or proprietary information, disclosed under this Agreement, that is clearly identified as confidential or proprietary at the time of disclosure or that the receiving party knew or should have known, under the circumstances, was considered confidential or proprietary. Confidential Information includes the Customer Data, information derived from or concerning the Service, the System or the Documentation and the terms of this Agreement.

  2. Custom Services” means any on-premises professional services to be provided by Provider described in an Order Form.

  3. Customer Data” means any data, information or information contained in any database, template or other similar document submitted by Customer through the Service or provided by Customer to Provider as part of the Service.

  4. “Order Form” means collectively the order documents representing the initial subscription to the Service and Custom Services (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement from time to time.

  5. “Fees” is defined in Section 4.

  6. “Local Software” is defined in Section 2.1.

  7. “Order Form” means collectively the order documents representing the initial subscription to the Service and Custom Services (and any subsequent modifications to the subscription agreed to between the parties in writing from time to time) that, upon execution, are incorporated in and made a part of this Agreement from time to time.

  8. "Reseller” means Provider’s authorized reseller that Customer used to subscribe for the Service.

  9. “Service” means the on-line service delivered by Provider to Customer using the System, as made available by Provider from time-to-time as specified in the Order Form.

  10. “System” means the technology, including hardware and software, used by Provider to deliver the Service to Customer in accordance with this Agreement.

  11. “UserID” is defined in Section 3.1.

  12. “Users” means Customer’s employees, representatives, consultants, contractors or agents who are authorized to use the Service on behalf of Customer and have been supplied user identifications and passwords for this purpose.

2. The Service
  1. Subscription to the Service. Conditional on Customer: (a) complying with the provisions of this Agreement, including but not limited to paying the Fees as required by this Agreement; (b) cooperating with the reasonable requests of Provider; (c) providing Provider with access to Customer’s internal systems and any required third party systems (and making all required third-party disclosures and obtaining all required third party consents in respect of such access) from which Customer wishes the System to access Customer Data; and (d) downloading and installing any software designated by Provider to receive the Service (“Local Software”), including agreeing to all applicable end-user license agreements and terms of use in respect of any Local Software, Provider hereby grants to Customer a non-sublicensable, non-transferable, non-exclusive subscription to access and use the Service in accordance with this Agreement solely for Customer’s internal business purposes and not for resale or to provide services to third parties. Customer may order the Service under this Agreement by placing written, signed orders on an Order Form.  Only the execution of an Order Form by Customer and by Provider constitutes a binding contract between those parties. Customer agrees that its purchase of the subscription is neither contingent upon the delivery of any future functionality or features nor dependent upon any oral or written public comments made by Provider with respect to future functionality or features.

  2. Custom Services.  Customer may from time to time order Custom Services under this Agreement by way of a mutual written agreement between the parties setting out the Fees, payment terms, description of Custom Services, performance standards and timeline for delivery.

  3. Support.  Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 4 hereof, Provider shall use commercially reasonable efforts to correct any reproducible failure of the Service to substantially conform to its expected operation, provided that Provider will not have an obligation to provide a correction for all such nonconformities.

  4. Internet Security Disclaimer.  Customer acknowledges and agrees that Provider exercises no control over, and accepts no responsibility for, any content passing through the Internet or for Internet connectivity outside of Provider’s control.  Customer acknowledges that the Internet is inherently risky despite reasonable measures being taken, and Customer assumes responsibility for its use of the Service over the Internet.

  5. Limitation, Suspension or Termination of Access.  In addition to other rights and remedies of Provider under this Agreement, Provider may suspend, terminate or limit (in Provider’s sole discretion) Customer’s access to or use of the Service, or any part of it, without notice in order to: (a) prevent damage to, or degradation of the integrity of the System or any of Customer’s systems; (b) comply with any law, regulation, court order or other governmental request or order; or (c) otherwise protect Provider from harm to its reputation or business.  Provider will use commercially reasonable efforts to notify Customer of a limitation, suspension or termination action as soon as reasonably practicable.  In the event of a limitation or suspension, Provider will restore Customer’s access to the Service when Provider determines the event has been resolved.  Nothing in this Agreement will limit Provider’s right to take any action or invoke remedies, or will act as a waiver of Provider’s rights in any way with respect to any of the foregoing activities.  Provider will not be responsible for any loss or damages of any kind incurred by Customer as a result of any limitation, termination or suspension of the Service under this Section 2.5.

3. Customer’s Use of the Service.
  1. Access and Security Guidelines. Subject to any limitations associated with Customer’s enterprise subscription account, Customer may set up User accounts by supplying a unique user identification name and password (“UserID”) to Provider for each User. Users may only access and use the Service with the specific UserID. Customer is responsible to ensure UserIDs are not shared, and that Users retain the confidentiality of their UserIDs. Customer is responsible for any and all activity occurring under the UserIDs associated with Users.  Customer will promptly notify Provider of any actual or suspected unauthorized use of the Service. Provider may require that a UserID be replaced at any time.

  2. Customer Data.  Customer is solely responsible for the Customer Data and will not provide, post or transmit any Customer Data or any other information, data or material that: (a) infringes or violates any intellectual property rights, publicity/privacy rights, law or regulation; or (b) contains any viruses or programming routines intended to damage, surreptitiously intercept or expropriate any system, data or personal information.  Provider may take remedial action if Customer Data violates this Section 3.2, however, Provider is under no obligation to review Customer Data for accuracy or potential liability.  
  3. Customer Responsibilities and Restrictions.  Customer will, at all times, comply with all applicable local, state, federal and foreign laws in using the Service.  Without limiting the generality of Section 3.1, Customer agrees that Customer will not, and will not permit any person to:

  1. use the Service other than as permitted by this Agreement;

  2. use the Service to violate, infringe or appropriate any person’s privacy rights, publicity rights, defamation rights, copy rights, trademark rights, contractual rights or any other legal right;

  3. sublicense or transfer any of Customer’s rights under this Agreement, except as otherwise provided in this Agreement, or otherwise use the Service for the benefit of a third party or to operate a servicer bureau;
  4. copy, modify, alter, change, translate, decrypt, obtain or extract the source code of, create derivative works from, reverse engineer, reverse assemble, decompile, disassemble or reverse compile any part of the Service;
  5. use or launch any automated system, including without limitation any “robot” or “spider” that accesses the Service; or
  6. interfere with, or attempt to interfere with, the Service, the System or any other networks or services connected to the Service, whether through the use of viruses, bots, worms or any other computer code, file or program that interrupts, destroys or limits the functionality of any computer software or hardware.
  7. shall allow the System to access the Internet, in order to verify receipt of the payment of the Fees set forth in Section 4 by the Customer. In the event that the System cannot access the Internet, the System will cease to allow the Customer to make changes to their data.
4. Fees, Payment and Suspension.
  1. Fees, Payment and Suspension. As consideration for the subscription to the Service, Custom Services and the support services provided by Provider under this Agreement, Customer will pay Provider or the Reseller the fees (“Fees”) set forth in and in accordance with the Order Form. All Fees will be billed in advance on an annual basis and are due within thirty (30) days of receipt of invoice, unless otherwise agreed to in the Order Form. Overdue amounts shall accrue interest at the rate of 12% per annum, or at the highest legal interest rate, if less.  Customer shall reimburse Provider or the Reseller, as applicable, for all expenses (including reasonable attorneys’ fees) incurred by Provider or the Reseller to collect any amount that is not paid when due. All Fees owed by Customer in connection with this Agreement are exclusive of, and Customer shall pay, all sales, use, excise and other taxes that may be levied upon Customer in connection with this Agreement, except for employment taxes and taxes based on Provider’s or the Reseller’s net income.  Provider reserves the right (in addition to any other rights or remedies Provider may have) to discontinue the Service and suspend all UserIDs and Customer’s access to the Service if any Fees set forth in the Order Form are more than thirty (30) days overdue until such amounts are paid in full. Customer shall maintain complete, accurate and up-to-date Customer billing and contact information at all times.
5. Confidential Information.
  • Obligation. Each party agrees (a) to hold the other party’s Confidential Information in strict confidence, (b) to limit access to the other party’s Confidential Information to those of its employees or agents having a need to know and who are bound by confidentiality obligations at least as restrictive as those contained herein, and (c) not to use such Confidential Information for any purpose except as expressly permitted hereunder. Notwithstanding the foregoing, the receiving party will not be in violation of this Section 5.1 with regard to a disclosure that was in response to a valid order or requirement by a court or other governmental body, provided that the receiving party gives the other party with prior written notice of such disclosure in order to permit the other party to seek confidential treatment of such information.
  • Exceptions.  The restrictions on use and disclosure of Confidential Information set forth above will not apply to any Confidential Information, or portion thereof, which (a) is or becomes a part of the public domain through no act or omission of the receiving party, (b) was in the receiving party’s lawful possession prior to the disclosure, as shown by the receiving party’s competent written records, (c) is independently developed by the receiving party without reference to the disclosing party’s Confidential Information, as shown by the receiving party’s competent written records, or (d) is lawfully disclosed to the receiving party by a third party without restriction on disclosure.
6. Ownership.
  1. System and Technology. Customer acknowledges that Provider retains all right, title and interest in and to the System and all software, materials, formats, interfaces, information, data, content and Provider proprietary information and technology used by Provider or provided to Customer in connection with the Service (the “Provider Technology”), and that the Provider Technology is protected by intellectual property rights owned by or licensed to Provider. Other than as expressly set forth in this Agreement, no license or other rights in the Provider Technology are granted to the Customer, and all such rights are hereby expressly reserved by Provider. Provider shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer, including Users, relating to the Service.
  2. Customer Data. Customer retains all right, title and interest in and to the Customer Data. Provider will only use Customer Data to provide the Service under this Agreement. Customer will be solely responsible for providing all Customer Data required for the proper operation of the Service. Customer grants to Provider all necessary licenses in and to such Customer Data solely as necessary for Provider to provide the Service to Customer. Provider may collect, compile, aggregate, share, store and otherwise utilize Aggregate Information or Individual Information gathered by the Provider during the Term of this Agreement. In this section, “Aggregate Information” means information that describes the habits, usage patterns or demographics of the Customer, its customers and other users of the Application as a group but does not describe or reveal the identity of the Customer, its customers or any particular user. In this section, “Individual Information” means information about the Customer or its customers that is presented in a form indistinguishable from information relating to other users of the Application but not in a form that personally identifies any user or enables the recipient to communicate directly with or identify the Customer or its customers. To the extent possible in law and for the purposes of this paragraph, the Customer waives any protections or rights and gives all necessary consents it may have or be entitled to under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c.5, the Personal Information Protection Act, SBC 2003, c 63 and all other similar applicable privacy laws in any applicable jurisdiction (together, “Privacy Laws”) PROVIDING that, in exercising its rights under this section, the Provider shall comply with all aspects of Privacy Laws, as may be required. The Customer further agrees that it shall comply with all Privacy Laws when it collects, stores and utilizes its own customer’s data and information, including obtaining all necessary consents as may be required.
7. Term and Termination.
  1. Term and Termination. Either party may terminate this Agreement upon written notice with forty five (45) days written notice. Upon the termination of this Agreement for any reason, (a) any amounts owed to Provider under this Agreement before such termination will become immediately due and payable; and (b) each party will return to the other all property (including any Confidential Information) of the other party in its possession or control. Provider agrees that upon any early termination of this Agreement, Provider will allow the Customer to access, without the right to modify, enhance or add to, the Customer Data (either through on-line access or an off-line mechanism provided by Provider) for a reasonable time period after termination. Thereafter, Provider will remove all Customer Data from the System and all Customer access to or use of the System and Service will be immediately suspended.  The rights and duties of the parties under Sections 4 through 6, this Section 7.2 and Sections 8 through 11 will survive the termination or expiration of this Agreement.
8. Warranty; Disclaimer.
  1. Warranty; Disclaimer.   THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY PROVIDER TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. PROVIDER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. PROVIDER DOES NOT WARRANT THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE.  WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVIDER EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
9. Indemnity.
  1. By Provider.  If any action is instituted by a third party against Customer based upon a claim that the Service or System, as delivered, infringes any third party intellectual property rights in the United States or Canada, Provider shall defend such action at its own expense on behalf of Customer and shall pay all damages attributable to such claim which are finally awarded against Customer or paid in settlement of such claim. Provider may, at its option and expense, and as Customer’s exclusive remedy hereunder, (a) procure for Customer the right to continue using the Service, (b) replace or modify the System or Service so that it is no longer infringing but continues to provide comparable functionality, or (c) terminate this Agreement and Customer’s access to the Service and refund any amounts previously paid for the Service attributable to the remainder of the then-current term of this Agreement. Provider shall have no liability to Customer for any infringement action which arises out of a breach of the terms and conditions of this Agreement by Customer or of the use of the Service or System (i) after it has been modified by Customer or a third party without Provider’s prior written consent, or (ii) in combination with any other service, equipment, software or process not provided by Provider.  This Section 9 sets forth the entire obligation of Provider and the exclusive remedy of Customer against Provider or any of its suppliers for any alleged infringement or adjudicated infringement of any patent, copyright or other intellectual property right by the Service or System.
  2. By Customer. If any action is instituted by a third party against Provider arising out of or relating to: (a) Customer’s use of the System or Service (including claims by any customer or business partner of Customer); (b) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (c) an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes the intellectual property or other right of a third party or otherwise causes harm to a third party, Customer will pay the Provider for the defense of such action and shall pay all damages attributable to such claim which are finally awarded against Provider or paid in settlement of such claim. Customer shall have no obligation under this Section 9.2 for any claim or action that is described in Section 9.1 or arises out of a breach of this Agreement by Provider.
  3. Conditions.  Any party that is seeking to be indemnified under the provision of this Section 9 (an “Indemnified Party”) must (a) promptly notify the other party (the “Indemnifying Party”) of any third-party claim, suit, or action for which it is seeking an indemnity hereunder (a “Claim”), and (b) give the Indemnifying Party the sole control over the defense of such Claim.  However, if an Indemnified Party fails to notify the Indemnifying Party promptly, the Indemnifying Party will be relieved of its obligations under this Section 9 only if and to the extent that its ability to defend the Claim is materially prejudiced by such failure.  The Indemnifying Party may settle or compromise a Claim without the Indemnified Party’s prior approval of any such settlement or compromise only if (A) such settlement involves no finding or admission of any breach by an Indemnified Party of any obligation to any third party, (B) such settlement has no effect on any other claim that may be made against an Indemnified Party or any defense that an Indemnified Party may assert in any such claim, and (C) the sole relief provided in connection with such settlement is monetary damages that are paid in full by the Indemnifying Party.   Upon the Indemnifying Party’s assumption of the defense of such Claim, the Indemnified Party will cooperate with the Indemnifying Party in such defense, at the Indemnifying Party’s expense.  
10. Limitation of Liability.

Limitation of Liability.  The following provisions have been negotiated by each party , are a fair allocation of risk, are an essential basis of the bargain under this Agreement and shall survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

  1. Amount.  IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED: (I) FOR PROVIDER, THE TOTAL AMOUNT OF FEES RECEIVED BY PROVIDER AND/OR THE RESELLER UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE; AND (II) FOR CUSTOMER THE FEES PAID BY THE CUSTOMER TO PROVIDER AND/OR THE RESELLER UNDER THIS AGREEMENT FOR THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE.  FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.  IN NO EVENT SHALL PROVIDER’S SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
  2. Type.  IN NO EVENT SHALL PROVIDER BE LIABLE TO CUSTOMER FOR ANY (I) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL, (III) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR (IV) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.  IN NO EVENT SHALL PROVIDER BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE PRODUCTS OR SERVICES.
  3. Exclusions.  THE PROVISIONS OF SECTIONS 10.1 AND 10.2 SHALL NOT APPLY TO THE EXTENT THAT THE CAUSE OF ACTION GIVING RISE TO THE CLAIM ARISES FROM: A) BREACH OF A RECIPIENT’S OBLIGATIONS UNDER SECTION 5 (CONFIDENTIAL INFORMATION); B) ANY INDEMNITY OBLIGATION OF A PARTY UNDER THIS AGREEMENT; OR C) CLAIMS FOR SUBSCRIPTION FEES OR OTHER FEES OWED TO PROVIDER UNDER THIS AGREEMENT AND ANY COST, EXPENSE OR FEES INCURRED IN THEIR COLLECTION.
  4. No Jury Trial.  EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
  5. No Participating in Class Action.  CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION LAWSUITS INVOLVING ANY SUCH DISPUTE.
11. General Provisions.
  1. Publicity.  Provider may make public announcements, including but not limited to, press releases and media announcements, of the existence of this Agreement and the relationship between the parties.  Customer agrees to allow Provider to use Customer’s name in customer lists and other promotional materials describing Customer as a customer of Provider and user of the Service.
  2. Assignment.  Customer may not assign this Agreement to a third party without Provider’s prior written consent not to be unreasonably withheld, except to a third party that controls, is controlled by or is under common control with Customer.  Provider may assign this Agreement or any rights hereunder to any third party without Customer’s consent.  Any assignment in violation of this Section 11.2 shall be void. Any assignment is conditional upon the assignee agreeing in writing to be bound to the terms of this Agreement which shall be binding upon and inure to the benefit of the parties’ successors and permitted assignees.
  3. Arbitration.  Except for any dispute related to the intellectual property rights of a party, any dispute or claim arising out of or relating to this Agreement will be referred to and finally resolved arbitration administered by the British Columbia International Commercial Arbitration Centre pursuant to its applicable Rules.  The place of arbitration shall be Vancouver, British Columbia, Canada.  The number of arbitrators shall be one (1).
  4. Choice of Law.  This Agreement and any action related thereto shall be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles.  The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
  5. Notices.  Any notice or other communication required or permitted under this Agreement and intended to have legal effect must be given in writing: (i) to Provider, by email at info@eomni.com or by certified mail at 2578 – 550 Burrard Street, Vancouver, BC, Canada, V6C 2B5; or (ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form.  Notwithstanding the foregoing, each party may change its address from time to time upon written notice to the other party of the new address.  Notices will be deemed to have been given upon receipt, or when delivery is refused.
  6. Entire Agreement.  This Agreement, including the Order Form, is the entire understanding and agreement of the parties, and supersedes any and all previous and contemporaneous understandings, agreements, proposals or representations, written or oral, between the parties, as to the subject matter hereof.  Only a writing signed by both parties may modify it.  
  7. Severability and Waiver.  The parties intend as follows: a) that if any provision of this agreement is held to be unenforceable, then that provision will be modified to the minimum extent necessary to make it enforceable, unless that modification is not permitted in law, in which case that provision will be disregarded; b) that if an unenforceable provision is modified or disregarded in accordance with this section 10.14 then the rest of the agreement will remain in effect as written; and c) that any unenforceable provision will remain as written in any circumstances other than those in which the provision is held to be unenforceable. d) Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.  All waivers must be in writing. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity
  8. Relationship of the Parties.  The parties to this Agreement are independent contractors, and no agency, partnership, franchise, joint venture or employee-employer relationship is intended or created by this Agreement.
  9. Counterparts.  This Agreement may be executed in counterparts, which taken together shall form one legal instrument.