FIGMENT DATAHUB SERVICE AGREEMENT
THESE TERMS OF SERVICE (THESE "TERMS") GOVERN SUBSCRIPTION TO AND USE OF SERVICES OF FIGMENT DATAHUB ("PROVIDER"), INCLUDING FREE PLANS. BY ACCESSING OR USING DATAHUB'S WEBSITES AND SERVICES, YOU ("CUSTOMER") ACCEPT OR AGREE TO THESE TERMS. IF YOU ARE ENTERING INTO OR ACCEPTING THESE TERMS ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY AND CAPACITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS, IN WHICH CASE, THE TERM "CUSTOMER" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE TO BE BOUND BY ALL OF THE PROVISIONS OF THESE TERMS, DO NOT ACCESS OR USE DATAHUB'S SERVICES.
In this Agreement:
"Access Credentials" means the usernames, passwords and other credentials enabling access to the Hosted Services, including both access credentials for the User Interface and access credentials for the API;\
"Agreement" means this agreement including any Schedules, and any amendments made to this Agreement from time to time;\
"API" means the application programming interface for the Hosted Services defined by the Provider and made available by the Provider to the Customer;\
"Business Day" means any weekday other than a bank or public holiday in Canada;\
"Customer Confidential Information" means:
any information disclosed by the Customer to the Provider during the Term (whether disclosed in writing, orally or otherwise) that at the time of disclosure:
- was marked as "confidential"; or
- should have been reasonably understood by the Provider to be confidential; and\
the Customer Data;\
"Customer Data" means all data, works and materials: uploaded to or stored on the Platform by the Customer; transmitted by the Platform at the instigation of the Customer; supplied by the Customer to the Provider for uploading to, transmission by or storage on the Platform; or generated by the Platform as a result of the use of the Hosted Services by the Customer (but excluding analytics data relating to the use of the Platform and server log files);\
"Customer Personal Data" means any Personal Data that is processed by the Provider on behalf of the Customer in relation to this Agreement;\
"Data Protection Laws" means all applicable laws relating to the processing of Personal Data; \
"Documentation" means the documentation for the Hosted Services produced by the Provider and delivered or made available by the Provider to the Customer;\
"Effective Date" means the date of execution of this Agreement;\
"Force Majeure Event" means an event, or a series of related events, that is outside the reasonable control of the party affected (including failures of the internet or any public telecommunications network, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, industrial disputes affecting any third party, changes to the law, disasters, explosions, fires, floods, riots, terrorist attacks and wars);\
"Hosted Services" means DataHub Hosted Node which will be made available by the Provider to the Customer as a service via the internet in accordance with this Agreement;\
"Hosted Services Specification" means the specification for the Platform and Hosted Services set out in Section 1 of Schedule 1 (Hosted Services particulars) and in the Documentation;\
"Intellectual Property Rights" means all intellectual property rights wherever in the world, whether registrable or unregistrable, registered or unregistered, including any application or right of application for such rights (and these "intellectual property rights" include copyright and related rights, database rights, confidential information, trade secrets, know-how, business names, trade names, trade marks, service marks, passing off rights, unfair competition rights, patents, petty patents, utility models, semi-conductor topography rights and rights in designs);\
"Personal Data" has the meaning given to it in the Data Protection Laws;\
"Platform" means the platform managed by the Provider and used by the Provider to provide the Hosted Services, including the application and database software for the Hosted Services, the system and server software used to provide the Hosted Services, and the computer hardware on which that application, database, system and server software is installed;\
"Schedule" means any schedule attached to the main body of this Agreement;\
"Services" means any services that the Provider provides to the Customer, or has an obligation to provide to the Customer, under this Agreement;\
"Support Services" means support in relation to the use of, and the identification and resolution of errors in, the Hosted Services, but shall not include the provision of training services;\
"Supported Web Browser" means the current release from time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple Safari, or any other web browser that the Provider agrees in writing shall be supported;\
"Term" means the term of this Agreement, commencing in accordance with Section 2.1 and ending in accordance with Section 2.2; and\
"User Interface" means the interface for the Hosted Services designed to allow individual human users to access and use the Hosted Services.
This Agreement shall come into force upon the Effective Date.\
This Agreement shall continue in force indefinitely, subject to termination in accordance with Section 16 or any other provision of this Agreement.
3. Hosted Services
- The Provider shall provide, or shall ensure that the Platform will provide, to the Customer upon the Effective Date the Access Credentials necessary to enable the Customer to access and use the Hosted Services.
- The Provider hereby grants to the Customer during the Term a worldwide, non-exclusive, non-sublicensable, non-transferable, limited licence to use the Hosted Services by means of the User Interface and the API for the internal business purposes of the Customer in accordance with the Documentation.
- The licence granted by the Provider to the Customer under Section 3.2 is subject to the following limitations:
- the User Interface may only be used through a Supported Web Browser;
- the User Interface may only be used by the officers, employees, agents and subcontractors of the Customer;
- the User Interface must not be used at any point in time by more than the number of concurrent users specified in Schedule 1 (Hosted Services particulars), provided that the Customer may add or remove concurrent user licences in accordance with the licence change procedure defined by the Hosted Services; and
- the API may only be used by an application or applications controlled by the Customer.
- Except to the extent expressly permitted in this Agreement or required by law on a non-excludable basis, the licence granted by the Provider to the Customer under Section 3.2 is subject to the following prohibitions:
- the Customer must not sub-license its right to access and use the Hosted Services;
- the Customer must not permit any unauthorised person or application to access or use the Hosted Services; and
- the Customer must not make any alteration to the Platform, except as permitted by the Documentation.
- The Customer shall implement and maintain reasonable security measures relating to the Access Credentials to ensure that no unauthorised person or application may gain access to the Hosted Services by means of the Access Credentials.
- The Provider shall use commercially reasonable efforts to maintain the availability of the Hosted Services to the Customer at the gateway between the public internet and the network of the hosting services provider for the Hosted Services, but does not guarantee 100% availability.
- For the avoidance of doubt, downtime caused directly or indirectly by any of the following shall not be considered a breach of this Agreement:
- a Force Majeure Event;
- a fault or failure of the internet or any public telecommunications network;
- a fault or failure of the Customer's computer systems or networks;
- any breach by the Customer of this Agreement; or
- scheduled maintenance carried out in accordance with this Agreement.
- The Customer must comply with Schedule 1 (Acceptable Use Policy), and must ensure that all persons using the Hosted Services with the authority of the Customer or by means of the Access Credentials comply with Schedule 1 (Acceptable Use Policy).
- The Customer must not use the Hosted Services in any way that causes, or may cause, damage to the Hosted Services or Platform or impairment of the availability or accessibility of the Hosted Services.
- The Customer must not use the Hosted Services:
- in any way that is unlawful, illegal, fraudulent or harmful; or
- in connection with any unlawful, illegal, fraudulent or harmful purpose or activity.
- For the avoidance of doubt, the Customer has no right to access the software code (including object code, intermediate code and source code) of the Platform, either during or after the Term.
- The Provider may suspend the provision of the Hosted Services if any amount due to be paid by the Customer to the Provider under this Agreement is overdue, and the Provider has given to the Customer at least 30 days' written notice, following the amount becoming overdue, of its intention to suspend the Hosted Services on this basis.
4. Scheduled maintenance
- The Provider may from time to time suspend the Hosted Services for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Section 4.
- The Provider shall where practicable give to the Customer at least 2 Business Days' prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Hosted Services or have a material negative impact upon the Hosted Services.
5. Customer Data
- The Customer hereby grants to the Provider a non-exclusive licence to copy, reproduce, store, distribute, publish, export, adapt, edit and translate the Customer Data to the extent reasonably required for the performance of the Provider's obligations and the exercise of the Provider's rights under this Agreement.
- The Customer warrants to the Provider that the Customer Data will not infringe the Intellectual Property Rights or other legal rights of any person, and will not breach the provisions of any law, statute or regulation, in any jurisdiction and under any applicable law.
6. No assignment of Intellectual Property Rights
- Nothing in this Agreement shall operate to assign or transfer any Intellectual Property Rights from the Provider to the Customer, or from the Customer to the Provider.
- The Customer shall pay the Charges to the Provider in accordance with this Agreement.
- The Provider may elect to vary any element of the Charges by giving to the Customer not less than 7 days' written notice of the variation expiring on any anniversary of the date of execution of this Agreement.
- The Provider shall issue invoices for the Charges to the Customer in advance of the period to which they relate.
- The Customer must pay the Charges to the Provider within the period of 30 days following the issue of an invoice in accordance with this Section 8, provided that the Charges must in all cases be paid before the commencement of the period to which they relate.
- All amounts payable under this Agreement by Customer to Provider shall be made through a third party payment vendor ("Payment Vendor") of Provider's choice. Currently, such Payment Vendor is Stripe (www.stripe.com; 510 Townsend Street, San Francisco, CA 94103, USA). You may only provide payment information that you are legally entitled to use. You must not use the Payment Vendor to commit fraud. You agree to abide by any terms that the Payment Vendor imposes on us and/or you from time to time. We do not handle your payment information. As part of the payment process, you may be redirected to the Payment Vendor's platform. The Payment Vendor will then confirm to us whether payment was successful. By making a payment through the Payment Vendor, you must also agree to the Payment Vendor's terms and privacy policies, over which we have no control.
9. Provider's confidentiality obligations
- The Provider must take commercially reasonable steps to:
- keep the Customer Confidential Information confidential;
- not disclose the Customer Confidential Information to any person without the Customer's prior written consent;
- use the same degree of care to protect the confidentiality of the Customer Confidential Information as the Provider uses to protect the Provider's own confidential information of a similar nature, being at least a reasonable degree of care; and
- act in good faith at all times in relation to the Customer Confidential Information.
- Notwithstanding Section 9.1, the Provider may disclose the Customer Confidential Information to the Provider's officers, employees, professional advisers, insurers, agents and subcontractors who are bound by a written agreement or professional obligation to protect the confidentiality of the Customer Confidential Information.
- This Section 9 imposes no obligations upon the Provider with respect to Customer Confidential Information that:
- is known to the Provider before disclosure under this Agreement and is not subject to any other obligation of confidentiality; or
- is or becomes publicly known through no act or default of the Provider.
- The restrictions in this Section 9 do not apply to the extent that any Customer Confidential Information is required or permitted to be disclosed by any law or regulation, by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the Provider on any recognised stock exchange.
- The provisions of this Section 9 shall continue in force for a period of 1 year following the termination of this Agreement, at the end of which period they will cease to have effect.
10. Data protection
- The Customer warrants to the Provider that it has the legal right to disclose all Personal Data that it does in fact disclose to the Provider under or in connection with this Agreement.
- The Provider shall promptly inform the Customer if, in the opinion of the Provider, an instruction of the Customer relating to the processing of the Customer Personal Data infringes the Data Protection Laws.
- Notwithstanding any other provision of this Agreement, the Provider may process the Customer Personal Data if and to the extent that the Provider is required to do so by applicable law. In such a case, the Provider shall inform the Customer of the legal requirement before processing, unless that law prohibits such information.
- If any changes or prospective changes to the Data Protection Laws result or will result in one or both parties not complying with the Data Protection Laws in relation to processing of Personal Data carried out under this Agreement, then the parties shall use their best endeavours promptly to agree such variations to this Agreement as may be necessary to remedy such non-compliance.
- The Provider warrants to the Customer that:
- the Provider has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement; and
- the Provider will comply with all applicable legal and regulatory requirements applying to the exercise of the Provider's rights and the fulfilment of the Provider's obligations under this Agreement.
- The Provider warrants to the Customer that:
- the Platform and Hosted Services will conform in all material respects with the Hosted Services Specification; and
- the Platform will incorporate security features reflecting the requirements of good industry practice.
- The Customer warrants to the Provider that it has the legal right and authority to enter into this Agreement and to perform its obligations under this Agreement.
- All of the parties' warranties and representations in respect of the subject matter of this Agreement are expressly set out in this Agreement. To the maximum extent permitted by applicable law, no other warranties or representations concerning the subject matter of this Agreement will be implied into this Agreement or any related contract.
12. Acknowledgements and warranty limitations
- The Customer acknowledges that complex software is never wholly free from defects, errors and bugs; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be wholly free from defects, errors and bugs.
- The Customer acknowledges that complex software is never entirely free from security vulnerabilities; and subject to the other provisions of this Agreement, the Provider gives no warranty or representation that the Hosted Services will be entirely secure or free of viruses or malware.
- The Customer acknowledges that the Provider will not provide any legal, financial, accountancy or taxation advice under this Agreement or in relation to the Hosted Services; and, except to the extent expressly provided otherwise in this Agreement, the Provider does not warrant or represent that the Hosted Services or the use of the Hosted Services by the Customer will not give rise to any legal liability on the part of the Customer or any other person.
13. Limitations and exclusions of liability
- The provisions of this Article 13 shall not apply to Customer's obligations to pay any amounts payable to Provider under this Agreement.
- Neither party shall be liable to the other party in respect of any losses arising out of a Force Majeure Event.
- Neither party shall be liable to the other party in respect of any loss of profits or anticipated savings.
- Neither party shall be liable to the other party in respect of any loss of revenue or income.
- Neither party shall be liable to the other party in respect of any loss of use or production.
- Neither party shall be liable to the other party in respect of any loss of business, contracts or opportunities.
- Neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
- The liability of each party to the other party under this Agreement in respect of any event or series of related events shall not exceed the greater of:
- $5,000.00 USD; and
- the total amount paid and payable by the Customer to the Provider under this Agreement in the 12 month period preceding the commencement of the event or events.
14. Force Majeure Event
- If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under this Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
- A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under this Agreement, must:
- promptly notify the other; and
- inform the other of the period for which it is estimated that such failure or delay will continue.
- Either party may terminate this Agreement by giving to the other party at least 30 days' written notice of termination.
- Either party may terminate this Agreement by giving written notice to the other Party of the other Party's material breach of this Agreement and such material breach is not cured within 30 days of such notice.
- Either party may terminate this Agreement immediately by giving written notice of termination to the other party if:
- the other party:
- is dissolved;
- ceases to conduct all (or substantially all) of its business;
- is or becomes unable to pay its debts as they fall due;
- is or becomes insolvent or is declared insolvent; or
- convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
- an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
- an order is made for the winding up of the other party, or the other party passes a resolution for its winding up.
- the other party:
16. Effects of termination
- Upon the termination of this Agreement, all of the provisions of this Agreement shall cease to have effect, save that the following provisions of this Agreement shall survive and continue to have effect (in accordance with their express terms or otherwise indefinitely): Sections 1, 3.11, 8.2, 9, 10, 13, 16 and 17, and any other provision that should by its nature survive termination.
- Except to the extent that this Agreement expressly provides otherwise, the termination of this Agreement shall not affect the accrued rights of either party.
- Within 30 days following the termination of this Agreement for any reason:
- the Customer must pay to the Provider any Charges in respect of Services provided to the Customer before the termination of this Agreement; and
- the Provider must refund to the Customer any Charges paid by the Customer to the Provider in respect of Services that were to be provided to the Customer after the termination of this Agreement,
without prejudice to the parties' other legal rights.
- No breach of any provision of this Agreement shall be waived except with the express written consent of the party not in breach.
- If any provision of this Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions of this Agreement will continue in effect. If any unlawful and/or unenforceable provision would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect (unless that would contradict the clear intention of the parties, in which case the entirety of the relevant provision will be deemed to be deleted).
- This Agreement may not be varied except by a written document signed by or on behalf of each of the parties.
- This Agreement shall be governed by and construed in accordance with laws of Ontario, Canada.
- The courts of Ontario Canada shall have exclusive jurisdiction to adjudicate any dispute arising under or in connection with this Agreement.
SCHEDULE 1 (ACCEPTABLE USE POLICY)
- This acceptable use policy (the "Policy") sets out the rules governing:
- the use of the website at datahub.figment.io, any successor website, and the services available on that website or any successor website (the "Services"); and
- the transmission, storage and processing of content by you, or by any person on your behalf, using the Services ("Content").
- References in this Policy to "you" are to any customer for the Services and any individual user of the Services (and "your" should be construed accordingly); and references in this Policy to "us" are to Figment (and "we" and "our" should be construed accordingly).
- By using the Services, you agree to the rules set out in this Policy.
2. General usage rules
- You must not use the Services in any way that causes, or may cause, damage to the Services or impairment of the availability or accessibility of the Services.
- You must not use the Services:
- in any way that is unlawful, illegal, fraudulent, deceptive or harmful; or
- in connection with any unlawful, illegal, fraudulent, deceptive or harmful purpose or activity.
3. Unlawful Content
- Content must not be illegal or unlawful, must not infringe any person's legal rights, and must not be capable of giving rise to legal action against any person (in each case in any jurisdiction and under any applicable law).
- Content must not:
- infringe any copyright, moral right, database right, trade mark right, design right, right in passing off, or other intellectual property right;
- infringe any right of confidence, right of privacy or right under data protection legislation;
- be in contempt of any court, or in breach of any court order; or
- constitute a breach of any law or contractual obligation owed to any person.
4. Negligent advice
- Content must not consist of or contain any legal, financial, investment, taxation, accountancy, medical or other professional advice, and you must not use the Services to provide any legal, financial, investment, taxation, accountancy, medical or other professional advisory services.
5. Marketing and spam
- Content must not constitute or contain spam, and you must not use the Services to store or transmit spam - which for these purposes shall include all unlawful marketing communications and unsolicited commercial communications.
- You must not send any spam to any person using any email address made available through the Services or that you find using the Services.
- You must not use the Services in any way which is liable to result in the blacklisting of any of our IP addresses.
- You acknowledge that we may, but do not have any obligation to, actively monitor the Content and the use of the Services. Our monitoring or non-monitoring of the Content shall not reduce or otherwise limit your obligations under the Terms in respect of Content including, without limitation, Section 3 of this Schedule 1.
7. Harmful software
- The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any viruses, worms, spyware, adware or other harmful or malicious software, programs, routines, applications or technologies.
- The Content must not contain or consist of, and you must not promote, distribute or execute by means of the Services, any software, programs, routines, applications or technologies that will or may have a material negative effect upon the performance of a computer or introduce material security risks to a computer.