Terms and Conditions

The Terms and Conditions on the following web pages of this document and any Schedules attached to the contract from which this page was linked, as well as any Addendum, form an integral part of this Agreement.  These documents and any Addendum constitute the entire Agreement between the parties hereto with respect to the subject matter hereof and such Agreement cancels and replaces any prior understandings and agreements between the parties with respect to such subject matter.

There are no representations, undertakings, provisions or agreements between the parties other than as set out herein or in any Addendum and the parties agree that no warranty not set out expressly herein shall be implied, by law or otherwise.

For good and valuable consideration (the receipt and sufficiency of which each party acknowledges) the parties (by their authorized representatives) have executed this Agreement, as of the Effective Date.

TERMS AND CONDITIONS

ARTICLE 1 – INTERPRETATION

1.1 Definitions

In this Agreement, unless otherwise defined in an Addendum, the words and phrases defined in this Agreement shall have the meanings ascribed to them herein, and the following words and terms shall have the respective meanings ascribed to them as follows:

“Addendum” means each addendum of services or statement of work prepared by Digital Days describing the Products to be provided by Digital Days.

“Affiliate” shall have the meaning ascribed to such term in the Canada Business Corporations Act.

“Confidential Information” means any and all confidential or proprietary, information and trade secrets of either party or their respective Affiliates, regardless of form and whether or not recorded on a file or medium  and includes, without limitation, the following information of or in the possession of either party (hereafter the “Disclosing Party”) or its Affiliates which has been communicated to, or come to  the knowledge of, the other party (hereafter, the “Recipient”) or its Affiliates in the context of this Agreement, including without limitation: (i) business, financial, scientific or technical information, software and development methods, (ii) compilations of data or information, (iii) business methods and practices, (iv) information relating to actual or prospective services, products, activities, know-how, research and development, or commercial relationships, and (v) information or data received by the Disclosing Party from third parties to whom the Disclosing Party owes a duty of confidence in respect of such information or data.

“Customer Data” means all data and information relating to Customer or its Affiliates and to Customer’s own clients, including any Personal Information, however recorded, provided or made available by Customer to Digital Days to enable Digital Days to provide the Products.

“Equipment” means equipment, hardware, computers and devices (with their embedded Software, if any), unless such items are sold under separate terms and conditions.

“Intellectual Property” means all intellectual and industrial property including, without limitation, Software code, compilations of data and computer databases, algorithms, business and technical rules, specifications, designs and industrial designs, know-how, confidential information, works of authorship, integrated circuit topographies, inventions and Modifications thereof.

“Intellectual Property Rights” or “IP Rights” includes all intellectual and industrial property rights including, without limitation, all rights in each country to copyrights, copyright applications and registrations, trade-marks, trade-mark applications and registrations, service marks, patents, inventions, discoveries, patent applications, industrial designs, design rights, integrated circuit topography rights, trade secrets and information of a confidential nature.

“Modifications” means any changes, modifications, adaptations, improvements, enhancements, additions or derivative works made to or created on existing Intellectual Property.

“On-Line Services” means software as a service, platform as a service¸ software license subscriptions and other similar on-line services, as the case may be, to be provided by Digital Days to Customer under this Agreement, as described in an Addendum.

“Personal Information” means information about an identifiable individual, as further defined in the applicable Privacy Laws.

“Pre-existing Works” means any Intellectual Property developed or acquired by or on behalf of a party that existed as of the date hereof, or that is subsequently created or acquired by such party independently of this Agreement.

“Privacy Laws” the applicable Canadian federal or provincial statutes dealing with the protection of Personal Information.

“Product” means any Service, Software or Equipment, as the case may be, to be provided by Digital Days to Customer under this Agreement, as described in an Addendum and “Products” means all of them in the aggregate.

“Professional Deliverables” means in the context of Professional Services only, any new computer code or materials, other than Products, Software bugs and fixes, or sample coding, that Digital Days leaves with Customer upon conclusion of the performance of the corresponding Professional Services.

“Professional Services” means consulting, professional, installation, support or other similar services, as the case may be, to be provided by Digital Days to Customer under this Agreement, as described in an Addendum.

“Services” means the On-Line Services and/or Professional Services, as the case may be, to be provided by Digital Days to Customer under this Agreement, as described in an Addendum.

“Software” means software programs and applications, as the case may be, to be provided by Digital Days to Customer under this Agreement, as described in an Addendum.

“Third Party Components” means On-Line Services, Software and/or Equipment, procured by Digital Days from a third party and being provided as is to the Customer under this Agreement, as updated, modified and replaced from time to time by Digital Days or the third party itself.

“Third Party Conditions” means any and all contractual terms and conditions associated to Third Party Components, as updated, modified replaced and made available to Customer from time to time by Digital Days or the third party itself.

1.2 Priority

Unless there is something in the context or subject matter inconsistent therewith, in the event of a conflict or inconsistency between this Agreement and any Addendum, the provisions of the Addendum shall prevail over the provisions of this Agreement, but only to the extent of the conflict or inconsistency.  In the event of a conflict or inconsistency between this Agreement or any Addendum and the applicable Third Party Conditions for a Product, the provisions of the Third Party Conditions shall prevail over the provisions of this Agreement and any Addendum.

ARTICLE 2 – PROVISION OF SERVICES

2.1 Addendum

Digital Days will provide Customer and Customer will procure from Digital Days the Products described in each specific Addendum, subject to the provisions of this MSA, the relevant Addendum and the relevant Third Party Conditions.  Each Addendum shall be deemed to incorporate the provisions of this Agreement and any and all relevant Third Party Conditions.  The On-Line Services may provide additional terms and conditions. Customer’s use of the Product shall constitute the Customer’s acceptance of the terms and conditions of this Agreement, the relevant Addendum and the applicable Third Party Conditions.

ARTICLE 3 – PRICE AND PAYMENT

3.1 Charges

Customer agrees to pay Digital Days’ charges for the Products in accordance with the provisions of the applicable Addendum.  Digital Days may from time to time upon written notice to Customer increase the rates or charges for any or all Products, provided that (except for Third Party Components) the increase for a particular Product shall not exceed ten percent in a calendar year.  Where the price for a Service is expressly specified in an Addendum as an estimate, it only represents a reasonable estimate (based on information made available) of the Service which will be required and the actual price may vary from such estimated price.

3.2 Invoicing

Unless specified otherwise in the relevant Addendum, Digital Days shall invoice Customer monthly, in arrears, and payment will be due within thirty days of receipt of the Digital Days invoice. Any price shown in an Addendum is exclusive of any and all applicable taxes.   Any outstanding and owing amount due to Digital Days and not paid within the prescribed period shall bear interest from the due date thereof to the date of payment at a rate of interest equal to eighteen percent per annum, calculated and payable monthly.  Customer may only withhold payment of sums due under an invoice to the extent it disputes in good faith and in writing such charges within thirty days (unless specified otherwise in the relevant Addendum) of the provision of the relevant Service. Customer shall provide Digital Days with a reasonably detailed written explanation of the basis for the dispute and shall continue to make payments of undisputed charges as otherwise provided in this section.  If, after having been given thirty (30) days’ notice of a default in payment of any amount (or any interest thereon) when due Customer has not cured such default, then Digital Days may, in addition to any other rights or remedies at law or under this Agreement, withhold (i) the provision of further Services, (ii) the procurement and delivery of any unpaid Equipment or Third Party Component, or (iii) the performance of any of its obligations under any Addendum until such failure is remedied.

ARTICLE 4 – OWNERSHIP AND LICENSE

4.1 Customer Data

Customer shall retain ownership of all right, title and interest in and to Customer Data. Customer shall have sole responsibility for collecting, maintaining and distributing Customer Data and covenants that such activities have and will continue to be conducted in compliance with applicable Privacy Laws and that Customer has and will continue to obtain required consents for the disclosure and use of Personal Information in a manner so as to enable Digital Days and its agents to use such Personal Information as may be required in order to provide the Services or supply the Products.  Digital Days will not be responsible or liable for any loss, damage or inconvenience suffered by Customer arising out of Digital Days’ inability to perform the Services due to failure of Customer to provide all necessary Customer Data when required by an Addendum, or by reason of any deficiencies in the Customer Data.

4.2 Ownership of Intellectual Property

Except as otherwise specifically provided in an Addendum: a) Customer (and its licensors) shall retain and be the sole and exclusive owner of all Intellectual Property and IP Rights in and to Customer Pre-existing Works and any Modifications thereto; and b) Digital Days (and its licensors) shall retain and be the sole and exclusive owner of all Intellectual Property and IP Rights in and to the Products and in Digital Days’ Pre-existing Works and in any Modifications thereto.  Digital Days remains entitled to use any technical information it derives from providing Services for problem resolution, troubleshooting, product functionality enhancements, Software bugs and fixes, and for its general knowledge, but Digital Days will not identify Customer nor disclose any of Customer Data in the context of any such use.

4.3 Licenses

• • (a) Except as otherwise specifically provided in an Addendum and subject to applicable Third Party Conditions: a) Digital Days hereby grants and shall grant to Customer a non-exclusive temporary license to use the Software for Customer’s and its Affiliates’ own internal business purposes; b) Customer hereby grants and shall grant to Digital Days a non-exclusive license to use the Customer Data and the Customer Pre-existing Works for the purpose of providing the Services and otherwise supplying the Products.
  • (b) Licenses available on a subscription basis and On-Line Services are temporary and solely for the length of the applicable subscription or Addendum term. Each bug fix being provided by Digital Days (or its licensors) hereunder is licensed under the same terms as the Product to which it applies. Digital Days may suspend use of an On-line Service during Customer’s violation of the applicable terms of use policy, if any.
  • (c) Upon payment in full for the corresponding Professional Services, Digital Days grants Customer a non-exclusive, non-transferable, perpetual license to reproduce, use and modify the corresponding Professional Deliverables solely for Customer’s internal business purposes, subject to the terms and conditions in this Agreement.
  • (d) Notwithstanding any of the foregoing, Third Party Components are subject to the relevant applicable Third Party Conditions.

4.4 Reservation of Rights and Restrictions

• • (a) Digital Days does not transfer any ownership rights in any Products and reserves all rights not expressly granted to Customer. Customer must not, nor attempt to reverse engineer, disassemble or decompile any Product, nor work around any technical limitations in the Products.
  • (b) Except as expressly permitted in this Agreement or an Addendum, Customer shall not distribute, sublicense, rent, lease, lend, or use any Product to offer hosting services to a third party.
  • (c) Subject to the relevant applicable Third-Party Conditions, Customer may sublicense its rights to use Software or On-Line Services to its Affiliates, provided that such Affiliates may not sublicense these rights and Customer remains at all times liable towards Digital Days for ensuring its Affiliates’ compliance with this Agreement. The sublicensed use shall automatically extinguish if an Affiliate ceases to be a Customer Affiliate and Customer covenants to promptly notify Digital Days thereof.
  • (d) Customer must keep reasonable records of its use and (if any authorized) distribution of Products by Customer and its Affiliates. Digital Days (and its licensors in respect of Third-Party Components) has the right, at its expense, to verify compliance with the applicable terms hereunder.

ARTICLE 5 – CONFIDENTIAL INFORMATION

• • 5.1 Confidentiality Obligation
    • (a) Each party acknowledges that Confidential Information will be exchanged between the parties pursuant to this Agreement. Each party shall use no less than the same means it uses to protect its similar confidential and proprietary information, but in any event not less than reasonable means, to prevent the disclosure and to protect the confidentiality of the Confidential Information of the other party.  Each party agrees that it will not use the Confidential Information of the other party except for the purposes of this Agreement and as authorized herein.  Neither party shall disclose the Confidential Information or any information or materials of any kind or nature whatsoever relating to the Confidential Information to any person, except to employees or representatives of such party who need to know such Confidential Information in order to perform the Services under this Agreement or any Addendum. Neither party shall use the Confidential Information or any information or materials of any kind or nature whatsoever relating to the Confidential Information for its own benefit or the benefit of any other person, except as necessary to meet its obligations under this Agreement or any Addendum. Neither party may make copies of or otherwise appropriate the Confidential Information or any materials relating thereto without the prior written consent of the other party.
    • (b) Digital Days will not collect, use or disclose any Personal Information received hereunder except as necessary to perform its obligations under this Agreement and any Addendum.  Digital Days shall take reasonable steps to protect the Customer Data’s Personal Information in its possession and within its control, from unauthorized access or disclosure, including the use of reasonable physical, organizational and technological measures to safeguard Personal Information. Wherever possible, Customer will supply Personal Information that has been anonymized or scrubbed of personal identifiers.   Customer represents and warrants that it has the authority or had obtained all necessary consents from the subject individuals as required by applicable laws to enable Digital Days to use and disclose such Personal Information in accordance with its obligations under this Agreement and any Addendum.  In the event that any transfer to or use of any Personal Information by Digital Days is or, in Digital Days’ reasonable opinion, is likely to contravene applicable laws, Digital Days shall not be required to perform any further activities under this Agreement and the applicable Addendum(s) with respect to such Personal Information and both parties together shall use commercially reasonable efforts to agree to a non-contravening method of performing such activities with respect to such Personal Information.  As between Customer and Digital Days, all Personal Information is the property of Customer, and Digital Days shall have no right in or to that information except as necessary to perform its obligations under this Agreement and any Addendum.
    • (c) Confidential Information shall not include information that the Recipient can demonstrate (i) is in the public domain at the time of disclosure to the Recipient; (ii) becomes part of the public domain after disclosure to the Recipient through no fault of Recipient; (iii) is rightfully received from a third party without restriction; (iv) is independently developed by the Recipient without reference to or use of the information of the Disclosing Party; (v) is approved by the Disclosing Party for disclosure; or (vi) is required to be disclosed pursuant to a requirement of a court order, governmental agency or law provided the Recipient (A) provides the Disclosing Party with sufficient notice and opportunity to seek a protective order prior to any such disclosure and takes all reasonable steps available to maintain the information in confidence and (B) promptly co-operates with and assists the Disclosing Party in obtaining such protective order.

  5.2 Return of Confidential Information

Upon the termination or expiration of this Agreement, each party will return to the other all documents and information, however recorded, including but not limited to drawings, specifications, descriptions, or other papers, tapes, or any other media which contain any of the other’s Confidential Information.  Upon the termination or expiration of an Addendum or upon the completion of an Addendum, each party will return to the other all such documents and information that relates to such Addendum.

ARTICLE 6 – OBLIGATIONS OF CUSTOMER 

• 6.1 Customer Data

Customer shall provide all Customer Data to Digital Days in the manner agreed to between the parties.  Digital Days will not be responsible or liable for any loss, damage or inconvenience suffered by Customer arising out of Digital Days’ inability to perform Services or provide Products due to failure of Customer to provide all necessary Customer Data when required by an Addendum or by reason of any deficiencies in any of the Customer Data.

• 6.2 Facilities

If required to perform the Services or otherwise provide Products, Customer agrees to provide facilities for Digital Days’ equipment and software which must reside on Customer’s premises, at no charge, and Customer will ensure that Digital Days has sufficient access to such equipment and software.  Customer will also provide reasonable work space on Customer premises for employees and contractors of Digital Days who reasonably require work space to furnish Services.

• 6.3 Specific Procedures and Requirements

Customer shall in due course make available to Digital Days all of Customer’s Privacy Laws’, security, supervision and other standard procedures and requirements applicable to Digital Days personnel while rendering Services on Customer’s premises or accessing Customer’s networks or providing Services hereunder and Digital Days will comply with such procedures and requirements communicated to it in due course, unless, and provided that it shall not be responsible to the extent, such procedures or requirements cannot be reasonably imposed to the provider of Third Party Components and/or negatively impair Digital Days’ ability to provide the Products as contemplated hereunder or its ability to comply with this Agreement.

• 6.4 Industry Specific Laws

Customer and Digital Days will each comply with all applicable laws and regulations, however Digital Days is not responsible for compliance with any laws or regulations applicable to Customer or Customer’s industry that are not also generally applicable to information technology services providers, if any. Products may be subject to export laws and each party must comply with all applicable international and national laws and license requirements on the export of technologies and information and restricted or embargoed markets.

• 6.5 Customer Assistance
  • (a) Customer shall reasonably assist Digital Days in the provisions of the Products in the manner described in an Addendum. Customer shall make available all equipment, Software, Customer Data, information and personnel described in the Addendum on a timely basis.  Customer shall also ensure that those of its personnel who are assigned to assist Digital Days are familiar with Customer’s requirements and have the expertise and capabilities necessary to permit Digital Days to undertake and complete the Services or otherwise provide Products.
  • (b) Customer shall provide Digital Days with full access to Customer facilities and computers solely to enable it to perform the Services or otherwise provide Products. Such access shall include access by direct remote electronic access means.  Customer will establish and maintain during the term of an Addendum all communication equipment and related Software and other items reasonably requested by Digital Days to enable Digital Days to access Customer’s computers, such remote electronic access to be available at all reasonable times upon Digital Days’ request, except for scheduled maintenance and downtime.
  • (c) Customer acknowledges that the ability of Digital Days to provide Products within any time frame requires the co-operation of Customer in providing Digital Days with timely responses to requests for information, and the prompt and timely performance by Customer of its obligations, including providing electronic access. In the event Customer fails to perform any of its tasks or responsibilities set out in this Agreement or in any Addendum in a timely manner, and such failure causes delays or defaults in the performance by Digital Days of its obligations hereunder, or results in additional costs being incurred by Digital Days, then Digital Days shall use reasonable commercial efforts to provide Customer with notification of such expected delays and defaults and all delivery dates hereunder shall be extended by the number of business days so delayed or by the amount of days corresponding to the reasonable window of opportunity, taking into consideration all Third Party Components and any aspects not within Digital Days control, to complete the affected tasks.
• 6.6 Password Access

To access certain website platforms or services relating to Products, you may be required to create login accounts, passwords and other non-public authentication credentials. You have sole responsibility to ensure that your login accounts, passwords and other non-public authentication credentials remain confidential and that you modify passwords regularly and as soon as there is a risk they may be compromised.  Such access may be subject to additional conditions. Access may be blocked in the event we have reasons to believe that there may be a security breach or unauthorized access or use.

ARTICLE 7 – SUPPLY OF THIRD-PARTY COMPONENTS

• 7.1 Title to the Equipment

Title to any Equipment sold by Digital Days to Customer pursuant to an Addendum shall pass only upon payment of all amounts due therefore by Customer to Digital Days for said Equipment under the specific Addendum.  Until Customer has fully paid said amounts due, Customer shall neither create nor permit any liens, charges or encumbrances upon the Equipment.

• 7.2 Equipment and Third-Party Software

Any Third-Party Components to be provided to Customer under an Addendum will be provided pursuant and subject to the applicable Third-Party Conditions.  In such event, Digital Days shall use commercially reasonable efforts to deliver or make available (by hyperlink or otherwise), the Third Party Conditions to Customer and it is a condition hereof and of the use of the Third Party Component that Customer accept (and in certain instances execute and deliver to Digital Days copies thereof) the Third Party Conditions which may be imposed or required by the service provider, vendor, publisher or licensor thereof, as applicable.  Digital Days makes no warranty whatsoever with respect to any Third Party Component (including as to the operation or suitability of any Third Party Component with any other Products) and Customer’s sole recourse shall be to enforce the Third Party Conditions, subject to any limitations contained herein.  A list of, and hyperlinks to, various Third Party Conditions can be found from time to time on Digital Days’ website and by using the relevant Product which includes a Third Party Component, Customer automatically accepts the corresponding Third Party Conditions.

ARTICLE 8 – WARRANTIES, DISCLAIMERS AND LIMITATION OF LIABILITY

8.1 Mutual Representations and Warranties

Each party hereby represents and warrants to the other party that: a) it has the full right, power, legal capacity and authority to perform its obligations under this Agreement; b) it is a legal entity duly existing and in good standing under the laws of jurisdiction; and c) this Agreement will not conflict with, or result in, a breach of the terms, conditions or provisions of, or constitute a default under, any agreement to which it is bound.

8.2 Additional Representations and Warranties

Subject to Sections 7.1 and 7.2, Digital Days hereby warrants to Customer that: a) each Product will substantially conform to its applicable limited Product warranty, as documented by Digital Days to Customer, if any, in the applicable Addendum; b) the Professional Services provided by Digital Days will be performed by reasonably skilled and qualified personnel in a professional manner.

8.3 Digital Days Limited Warranties

• • (a) Subject to Sections 1 and 7.2, Digital Days warrants to Customer that each Equipment will substantially conform to its applicable limited Product warranty, as documented by Digital Days to Customer.
  • (b) With respect to any Equipment to be sold to Customer under an Addendum, if any, Digital Days warrants that to the extent the Equipment is sold directly by Digital Days, at the date of transfer of title in the Equipment to Customer, Digital Days shall have title to same free and clear of liens. To the extent such Equipment is warranted by the original manufacturer or distributor other than Digital Days, Digital Days will use commercially reasonable efforts to pass through any such third party warranties to Customer and assist Customer in enforcing such third party warranties, subject to the applicable Third Party Conditions. No other warranty is provided.
  • (c) Digital Days warrants that it will perform any Professional Services with reasonable professional care and skill. If Digital Days is in breach of such obligation and Customer notifies Digital Days of the defect or failure within thirty days of the date the Professional Service was performed, then Digital Days will, as the sole remedy for the breach, either re-perform the Professional Service or return the price Customer paid for them or credit Customer the price Customer is required to pay for them for such specific Professional Service.
  • (d) Digital Days warrants that any version of any Digital Days proprietary Software will perform substantially as described in the applicable Product documentation provided by Digital Days in the applicable Addendum for ninety days from the date Customer is first licensed for that version, failing which, Customer’s sole remedy will be that Digital Days, at its option: i) refund the price Customer paid for such defective Software, ii) repair such defective Software; or iii) replace such defective Software.  However, each Third Party Component is subject to the applicable limited warranty in the applicable Third Party Conditions.
  • (e) Digital Days warrants that during Customer’s use, each On-Line Service will perform in accordance with the applicable specifications provided by Digital Days in the applicable Addendum, failing which, Customer’s sole remedy will be that Digital Days credit or refund up to 10% of the price paid by the Customer to Digital Days for such On-Line Service for one day of such service.
  • (f) Customer waives any breach of warranty claims not made during the applicable warranty period. The warranties do not apply to defaults or problems caused by abuse, use inconsistent with this Agreement, including failure to meet minimum system requirements or accidents. These warranties do not apply to any free, beta or trial of a Product.
  • (g) The remedies above are Customer’s sole remedies for breach of the warranties in this section and are subject to applicable Third Party Conditions which may be more restrictive in respect of certain Third Party Components. Customer acknowledges that without the Third Party Conditions, Digital Days would not have been in a position to act as a reseller, distributor or agent in respect of the Third Party Components and Customer could not have procured same from Digital Days.

• 8.4 Intellectual Property Rights Infringement
• • (a) Subject to paragraph (d) below, Digital Days will defend and indemnify Customer against any third-party claim to the extent it alleges that a Software, On-Line Service or Equipment made available by Digital Days to Customer for a fee and used within the scope of the license and conditions of this Agreement (without modification and without combination with any other component), directly infringes a Canadian or U.S. patent, copyright, or trademark or trade secret of the third party. The indemnification obligation will only apply for damages and costs awarded against Customer by a court of competent jurisdiction from which no appeal is taken or for which all appeals have been dismissed in such action and which are attributable to such claim, or in a settlement accepted by Digital Days. Customer shall have no authority to settle any claim on behalf of Digital Days. If Digital Days cannot resolve the third party infringement claim under terms it deems commercially reasonable, it may, at its option, either: 1) modify or replace the Software, On-Line Service or Equipment with a functional equivalent; or 2) terminate Customer’s right to use the Software, On-Line Service or Equipment and refund any prepaid fees, less depreciation on a three-year, straight-line basis for perpetual licenses. Digital Days is not liable for any claims or damages due to Customer’s or its Affiliates’ continued use of Software, On-Line Service or Equipment after being notified to cease use due to a third-party claim.
  • (b) Digital Days shall have no liability for any claim that is based on: (i) any part of any Software, On-Line Service or Equipment not created by Digital Days including, without limitation, any Third Party Components; (ii) any Intellectual Property developed according to Customer specifications or by Customer either alone or jointly with Digital Days; (iii) the use or combination of the Software, On-Line Service or Equipment with software, hardware, or any other product or Intellectual Property not provided by Digital Days; or (iv) any change, modification, or enhancement by Customer or a third party to any Software, On-Line Service or Equipment or the use of the Software, On-Line Service or Equipment other than as prescribed in the specifications therefore.
  • (c) If a Software, On-Line Service or Equipment becomes, or in Digital Days’ sole opinion is likely to become, the subject of a claim of infringement or violation of any Intellectual Property Right or if Digital Days settles a claim of infringement, Digital Days may at its sole option, discretion and expense (i) obtain for Customer the right to continue using the Software, On-Line Service or Equipment, (ii) replace or modify the Software, On-Line Service or Equipment to make it non-infringing so long as the replacement or modification is substantially similar to the Software, On-Line Service or Equipment, or (iii) if neither of the foregoing are commercially practicable, refund to Customer the amount paid for the Software, On-Line Service or Equipment which is the subject of the claim, pro-rated on the basis of  three year by the straight line method of amortization from the date of the delivery of the Software, On-Line Service or Equipment, upon Customer agreeing with Digital Days that it shall, upon payment of the aforementioned sum, have no further right, title or interest in or license to use such Software, On-Line Service or Equipment.
  • (d) Notwithstanding the foregoing, Customer’s sole remedies for third party Intellectual Property Right infringement claims in respect of any Third Party Component shall be exclusively as provided in, and subject to, the applicable Third Party Conditions.
  • (e) In addition to any rights of termination of this Agreement or an Addendum by Customer or in the applicable Third Party Conditions, this Section states the entire liability of Digital Days and Customer’s sole remedies with respect to any claim that any Software, On-Line Service, Equipment or any other service infringes or violates any Intellectual Property Right of any third party.
  • (f) Customer will defend and indemnify Digital Days against any third-party claim to the extent it alleges that Customer Data infringes upon a Canadian or U.S. patent, copyright, or trademark or trade secret of the third party or that Customer’s or its Affiliates’ specific use of a Product is in violation of applicable laws.
• 8.5 Warranty Disclaimer
  • (a) THE EXPRESS WARRANTIES CONTAINED IN THIS AGREEMENT AND IN ANY ADDENDUM ARE THE ONLY WARRANTIES MADE OR PROVIDED BY DIGITAL DAYS. DIGITAL DAYS EXPRESSLY DISCLAIMS AND EXCLUDES ANY AND ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND OR NATURE, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, REPRESENTATIONS, WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE OR SATISFACTORY QUALITY, PERFORMANCE, RESULTS, TECHNOLOGY COMPATIBILITY, NON-OBSOLESCENCE, TITLE AND FITNESS FOR A PARTICULAR PURPOSE, AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF TRADE. DIGITAL DAYS DOES NOT REPRESENT OR WARRANT THAT (i) PRODUCTS WILL MEET CUSTOMER’S OR ITS AFFILIATES’ REQUIREMENTS OTHER THAN THE TECHNICAL AND/OR FUNCTIONAL REQUIREMENTS EXPRESSLY SET FORTH IN THE RELEVANT ADDENDUM, (ii) THE OPERATION OF THE PRODUCTS WILL BE ERROR-FREE OR UNINTERRUPTED OR (iii) THAT ALL PROGRAMMING ERRORS CAN BE CORRECTED.
  • (b) Except for any Service which itself is a back-up service, Customer is solely responsible for taking precautionary measures to prevent the loss or destruction of Customer Data and databases, such as for example, making regular backups and verifying the results obtained from using any Products, and Digital Days shall have no obligations or liability whatsoever with respect to any such loss or destruction. Customer is solely responsible for implementing any and all mandatory or recommended software updates and upgrades in due course and any failure or delay to do so may affect Digital Days’ ability to provide Services or meet its obligations hereunder and may negate any related warranty.
  • (c) Customer acknowledges and agrees that Digital Days does not and will not analyze the Customer Data and that Customer is solely responsible for ensuring compliance with any applicable Privacy Laws associated with the collection, use and disclosure of Customer Data and related Personal Information.
• 8.6 Limitation of Liability
  • (a) Except for bodily damages caused by Digital Days’ fault, indemnification pursuant to Section 4 for third party intellectual property infringement claims and claims as a result of Digital Days’ gross fault or intentional fault,  Digital Days’ entire liability for breach or default of any of the provisions of this Agreement or any Addendum, regardless of the form of action, shall in no event exceed: i) for Equipment, the amount paid by Customer to Digital Days for such deficient Equipment, ii) for Professional Services, the amount paid or required to be paid by Customer to Digital Days for such deficient Professional Services; iii) for On-Line Services,  the amount paid or required to be paid by Customer to Digital Days for such On-Line Service for those days during which the Service was not functional; and for Software, the amount paid or required to be paid by Customer to Digital Days for the license to such Software for those days during which the Software was not functional, as the case may be, and in the aggregate, in respect of all claims under or related to an Addendum, the amount paid by Customer under the applicable Addendum.
  • (b) IN NO EVENT WILL EITHER PARTY BE LIABLE HEREUNDER OR UNDER ANY ADDENDUM FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGE OR LOSS EVEN IF THE DAMAGE OR LOSS WAS FORESEEABLE AND EVEN IF THE PARTY HAD BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE OR LOSS, INCLUDING, BUT NOT LIMITED TO, LOST BUSINESS REVENUE, LOSS OF PROFITS, LOSS OF DATA, FAILURE TO REALIZE EXPECTED PROFITS OR SAVINGS OR OTHER COMMERCIAL OR ECONOMIC LOSS OF ANY KIND OR ANY CLAIM AGAINST THAT PARTY BY ANY OTHER PERSON.  THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS AGREEMENT SHALL APPLY IRRESPECTIVE OF THE NATURE OF THE CAUSE OF ACTION, DEMAND OR CLAIM BY CUSTOMER, INCLUDING, WITHOUT LIMITATION CONTRACTUAL, EXTRA-CONTRACTUAL FAULT OR ANY OTHER LEGAL THEORY.
  • (c) Neither party shall be responsible or liable for any loss, damage or inconvenience suffered by the other or by any third person, to the extent that such loss, damage or inconvenience is caused by the failure of the other party to comply with its obligations under this Agreement or an Addendum.

ARTICLE 9 – TERM AND TERMINATION

• 9.1 Term

The term of this Agreement will commence on the Effective Date and will continue for as long as at least one Addendum is still in force, unless terminated earlier in accordance with the Agreement.  Subject to the provisions of this Agreement, unless agreed to in writing by the parties, any Addendum which require performance beyond the term hereof shall be so performed and shall continue to be subject to the terms and conditions of this Agreement until each party’s performance under the Addendum is completed or until each party’s obligations under the Addendum is otherwise discharged.

• 9.2 Termination for Cause
  • (a) In the event either party: i) materially breaches any of its duties, obligations or responsibilities under this Agreement or an Addendum, which is capable of being reasonably cured, which breach is not cured within thirty (30) days after written notice is given to the breaching party specifying the breach, or ii) is Deemed Insolvent (as defined below), then the party not in breach or Deemed Insolvent, as the case may be, may, by promptly giving notice thereof to the other party, terminate the Addendum affected by the default or this Agreement as of the date specified in such notice of termination.
  • (b) For the purposes of this Section 2, a party shall be “Deemed Insolvent” if the party is dissolved, becomes insolvent, passes a resolution for its winding up (or an order is made by a court of competent jurisdiction for the winding up of the party), an administration order is made in relation to the party or a receiver or liquidator is appointed over, or takes possession of, any of the party’s assets, the party makes an arrangement or composition with its creditors generally, the party makes an assignment for the benefit of its creditors or an application to a court of competent jurisdiction for protection from its creditors generally, or the party ceases operations.
  • (c) In the event of termination by Digital Days pursuant to Section 2, Digital Days shall be paid on a time and materials basis for all Services performed, and all Equipment and Third Party Software delivered up to the date of termination and the allocated portion of the total contract price for the portions of the Deliverables delivered or performed to the date of termination as well as those portions that have been ordered from third parties but are not subject to cancellation. Digital Days will also be reimbursed for costs incurred to terminate any secondary agreements that Digital Days undertook in connection with the Services to be performed hereunder.
• 9.3 Survival

The parties hereto agree that the provisions hereof requiring performance or fulfilment after the expiry or earlier termination of this Agreement or any Addendum, as the case may be, shall survive such expiry or earlier termination.

ARTICLE 10 – PERSONNEL

• 10.1 Independent Contractor

The parties agree that Digital Days is and shall remain an independent contractor for all purposes and nothing herein or in any Addendum shall be construed to create any partnership, joint venture, agency, employer‑employee or other similar relationship and that the employees of Digital Days remain employees of Digital Days and not of Customer or its Affiliates.

• 10.2 Solicitation of Employees

During the term of any Addendum and for a period of one year after expiry or termination, Customer agrees not to solicit, hire or contract, directly or indirectly, with any of Digital Days’ employees involved in the provision of Product pursuant to such Addendum (including former employees within 18 months following termination of employment), provided that the foregoing restriction shall not apply if any employee seeks employment in response to a general solicitation (newspaper, trade journal, job fair or other general public advertisement).

ARTICLE 11 – GENERAL

• 11.1 Right to Perform Services For Others

Customer recognizes that Digital Days is in the business of providing technology services and may supply Products for other persons similar to the Products.  Subject to the ownership and license rights specified in this Agreement, Digital Days retains the right and nothing shall prevent Digital Days from using the ideas, concepts, methods, processes, know-how, organization, techniques or any Product or Intellectual Property owned, leased or licensed by Digital Days in providing services to any third person.

• 11.2 Customer as Reference Client

Upon the prior written consent of Customer in each case, Digital Days shall be entitled to use the names of Customer and any affiliate that uses the Systems, Services and Technology, for sales and marketing purposes in respect of the Services provided by Digital Days.  Upon the prior written consent of Customer in each case, Digital Days may publicly release or announce this agreement with Customer and the nature of the use of the Digital Days Services by Customer as part of Digital Days’ sales and marketing efforts, provided that Digital Days will provide drafts for approval by Customer with respect to any such press release or other disclosure.  As well, Digital Days may request that Customer serve as an active reference client for the System and Deliverables, including permitting other potential clients of Digital Days to visit Customer to witness the System and Deliverables in production and answering questions posed by potential clients of Digital Days.

• 11.3 Force Majeure

If the performance of this Agreement or any Addendum, or any obligation thereunder except the making of payments hereunder is prevented, restricted, or interfered with by reason of: fire, flood, earthquake, explosion or other casualty or accident or act of God; strikes or labour disputes; inability to procure or obtain delivery of parts, supplies, power, Equipment or Software from suppliers; war or other violence; any law, order proclamation, regulation, ordinance, demand or requirement of any governmental authority; or any other act or condition whatsoever beyond the reasonable control of the affected party, the party so affected, upon giving prompt notice to the other party, shall be excused from such performance to the extent of such prevention, restriction or interference; provided, however, that the party so affected shall take all reasonable steps to avoid or remove such cause of non‑performance and shall resume performance hereunder with dispatch whenever such causes are removed.

• 11.4 Assignment
  • (a) Neither party (in this Section an “Assignor”) may, without the other party’s prior written consent, not to be unreasonably withheld, assign or transfer this Agreement, or any of its rights or obligations under this Agreement to any third person (in this Section an “Assignee”) except to an Affiliate of the Assignor that is wholly owned, or that it wholly owns, or as part of a divestiture or sale of all or substantially all of the business and assets of the Assignor, provided that (i) the Assignee undertakes in writing to fully perform and be bound by the provisions of this Agreement, and (ii) Assignor shall indemnify and hold the other party to this Agreement harmless from and against the breaches and defaults of the Assignee under the Agreement. Any purported assignment by an Assignor other than in accordance with this Section is null and void and of no effect.
  • (b) Digital Days may use contractors, subcontractors to perform Services, but will be responsible for their performance, subject to the terms of this Agreement.

• 11.5 Amendments

Any amendment to this Agreement and any Addendum must be executed by both parties, except that Digital Days may from time to time modify its terms and conditions for all or substantially all of its customers, with a 30-day prior notice.  In the event Customer is in disagreement with any such Digital Days modification, it shall have the option to terminate this Agreement or the relevant Addendum within thirty days following receipt of the notice of amendment. Any conflicting terms and conditions contained in a Customer purchase order will not apply. Third Party Conditions are subject to modifications at any time in accordance with their own terms.

• 11.6 Waiver and Severability

No modification, addition to or waiver of any rights, obligations or defaults shall be effective unless in writing and signed by the party against whom the same is sought to be enforced.  One or more waivers of any right, obligation or default shall not be construed as a waiver of any subsequent right, obligation or default.  No delay or failure of either party in exercising any right hereunder and no partial or single exercise thereof shall be deemed of itself to constitute a waiver of such right or any other rights hereunder. If any provision of this Agreement or any Addendum is declared illegal, unenforceable or void by a court of competent jurisdiction, such portion shall be severed or limited so as to give effect to the intent of the parties, and each provision not so affected shall remain in full force and effect.

• 11.7 Further Assurances

Each of the parties hereto shall from time to time execute and deliver all such further documents and instruments and do all acts and things as the other party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement and an Addendum.

• 11.8 Notices

Notice under this Agreement and under any Addendum shall be deemed given when delivered in hand, when transmitted if sent by electronic mail or facsimile, or five (5) days after mailing if sent by registered mail, return receipt requested, postage paid and addressed to the recipient at the address shown on the first page of this Agreement or in the applicable Addendum or to such other address as may be designated by written notice given to the other party.

11.9 Governing Law and Currency

This Agreement shall be governed by and construed in accordance with the laws in force in the Province of Québec and Canada as applicable therein, without reference to its conflict or choice of law rules.  The United Nations Convention on Contracts for the International Sale of Goods and its related instruments will not apply to this Agreement. The parties hereby submit to the exclusive jurisdiction of the courts of the judicial district of Montreal, Québec for any legal action arising out of this Agreement or the performance of the obligations hereunder.  All references to currency herein or in an Addendum are deemed to mean lawful money of Canada unless expressed to be in some other currency.

MTL01: 3881304: v3A
(Rev. 2020/06/09)

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