Version September 1, 2018
MESH Diversity reserves the right to update this Agreement from time to time as set out in Section 14.3 below.
In this Agreement, the following words shall have the following meanings:
“Confidential Information” means any and all information in whatsoever form relating to MESH Diversity or the Customer, or the business, strategies, pricing structures, products and services, technical processes, computer software and software applications (both source code and object code), or Intellectual Property Rights of the parties which comes into a party’s possession by virtue of its entry into this Agreement or provision of the Services, and which the party regards, or could reasonably be expected to regard, as confidential and any and all information which has been or may be derived or obtained from any such information.
“Customer” means a company or individual that (a) accesses the Services for a free trial; or (b) signs an Order Form and may access the Services for the Term.
“Customer Data” means all data, information or material provided, submitted or imported into the Services by a Customer and its Users in the course of using the Services.
“Data Protection Laws” means all data protection and privacy laws applicable to the processing of Personal Data under the Agreement.
“Documentation” means user manuals, online help, policies and/or other support documentation of MESH Diversity, as amended by MESH Diversity from time to time in its sole discretion, that may be provided to Users or the Customer.
“Effective Date” means the date on which the Customer or Users commenced use of the Services or the date the Service was made available as documented in the Order Form, whichever occurs first.
“Force Majeure” means anything beyond either party’s reasonable control including but not limited to fire, explosion, power failure, earthquake, flood, severe storms, strike, embargo, acts of civil or military authority, war, terrorism, cyber terrorism, Internet service provider failures or delays, denial of service attacks, acts of God, actions or omissions of regulatory or governmental bodies that impact the delivery of Services.
“Initial Term” means a period of 12 months starting from the Effective Date, unless stated otherwise in the Order Form.
“Intellectual Property Rights” means all copyrights, patents, utility models, trade marks, service marks, registered designs, moral rights, design rights (whether registered or unregistered), technical information, algorithms, know-how, database rights, business names and logos, computer data, generic rights, proprietary information rights and all other similar proprietary rights (and all applications and rights to apply for registration or protection of any of the foregoing) as may exist anywhere in the world.
“Order Form” means an MESH Diversity quote which has been accepted by Customer, or a written document signed by both parties, which identifies the specific Services ordered, sets out the fees for use of the Services, and among other things includes the Term, number of Users, and billing and payment information.
“Personal Data” means any information about an individual who can be identified but does not include aggregated or anonymous information where an individual cannot be identified.
“Renewal Term” means a period of 12 months, unless stated otherwise in the Order Form.
“Services” means the online Diversity Intelligence™ software application services of MESH Diversity which include MESH Diversity branded and supported applications, updates, upgrades, support, and content (e.g., audio and visual information, documents) as further described in an Order Form. The Services do not include non-MESH Diversity applications that may be provided by third parties, whether or not such applications are made available on an MESH Diversity website.
“Term” means the Initial Term plus any Renewal Terms, together.
“Users” means a Customer’s employees, affiliates, representatives, consultants, contractors or agents who have been supplied user identifications and passwords by the Customer or MESH Diversity to access the Services, not to exceed the number of User Licenses purchased by the Customer.
“User Licenses” refers to the number of named licenses that a Customer has purchased as set out in the Order Form.
2.1 MESH Diversity agrees to provide the Services to the Customer for the Term in accordance with this Agreement.
2.2 The Customer is granted a limited, non-exclusive and non-transferable licence to use the Services (including any associated software, Intellectual Property Rights and Confidential Information) as a User during the Term.
2.3 Access to and use of the Site and Services is subject to all international, federal, provincial and local laws and regulations. Customer and User agree not to use the Site or Services in any way that violates such laws or regulations.
2.4 All Intellectual Property Rights and title to the Services shall remain with MESH Diversity and/or its licensors and no interest or ownership in the Services, the Intellectual Property Rights, or otherwise, is conveyed to the Customer or Users under this Agreement. No right to modify, adapt, or translate the Services or create derivative works from the Services is granted to the Customer. Nothing in this Agreement shall be construed to mean, by inference or otherwise, that the Customer has any right to obtain source code for the software comprised within the Services.
2.5 Subject to any rights granted under applicable law, disassembly, decompilation or reverse engineering and other source code derivation of the software comprised within the Services is prohibited.
2.6 The Services are provided to, and may be used solely by, the Customer and its licensed Users. The Customer may not: (a) lease, loan, resell or otherwise distribute the Services; or (b) permit access to or use of the Services by or on behalf of any third party except as permitted by MESH Diversity and documented in an Order Form.
3.1 In consideration of the provision of the Services by MESH Diversity, the Customer shall pay MESH Diversity the fees for use of the Services during the Term as documented in an Order Form.
3.2 Invoices will be issued monthly or annually in advance, as specified in the Order Form. All invoices shall be issued and are payable in full by the Customer in the currency set out in the invoice, plus any applicable taxes. Invoices are due upon receipt.
3.3 Any charges for additional products and services will be charged and invoiced when ordered by the Customer and as set out in any additional Order Form.
3.4 All fees are non-refundable unless expressly stated otherwise, or otherwise provided by law.
3.5 MESH Diversity may modify fees and charges at the commencement of a Renewal Term upon giving at least ninety (90) days’ prior written notice to Customer.
3.6 MESH Diversity may charge interest on late payments at a rate of 1% of the unpaid amount each month up to the maximum that is permitted by law. In addition, Customers shall reimburse MESH Diversity for all reasonable costs incurred by MESH Diversity in collecting late payments including reasonable attorneys’ fees and other costs and expenses. MESH Diversity may suspend or cancel the Services if a Customer does not pay any amounts owed in full and on time.
4.1 This Agreement will commence on the Effective Date and continue for the Initial Term. Upon expiry of the Initial Term this Agreement shall automatically renew for further Renewal Terms, unless a party terminates early in accordance with its rights set out below.
4.2 Either party may terminate this Agreement or reduce the number of User Licenses without reason, effective from the expiry of the Initial Term or any Renewal Period, upon giving at least thirty (30) days’ written notice prior to the expiry of the Initial Term or Renewal Period.
4.3 Either party shall be entitled to terminate this Agreement on written notice to the other if the other party: (a) goes into voluntary or involuntary liquidation (otherwise than for the purpose of a solvent reconstruction or amalgamation) or has a receiver or administrator or similar person appointed or is unable to pay its debts or ceases or threatens to cease to carry on business or if any event occurs which is analogous to any of the foregoing in another jurisdiction; or (b) commits a material breach of any term of this Agreement which, if capable of remedy, is not remedied within twenty (20) days of receipt of a written notice specifying the breach and requiring it to be remedied; or (c) is prevented by Force Majeure from fulfilling its obligations for more than thirty (30) days. If MESH Diversity terminates the Agreement pursuant to Section 4.3(b), the Customer shall promptly pay MESH Diversity any unpaid Fees for the remainder of the Term and any amounts paid by the Customer for Services not yet delivered will be non-refundable.
4.4 Upon termination of this Agreement, MESH Diversity shall immediately cease providing the Services to the Customer and its Users and all licences granted hereunder shall terminate.
4.5 All clauses which by their nature should continue after termination or expiry shall, for the avoidance of doubt, survive the expiration or sooner termination or expiry of this Agreement and shall remain in force and effect.
5.1 MESH Diversity shall: (a) provide support for the Services to Customer; (b) use commercially reasonable efforts to make the Services available 24 hours a day, 7 days a week, excluding: (i) planned downtime (of which MESH Diversity shall give at least five (5) days’ notice via the Services); or (ii) any unavailability caused by Force Majeure; and (c) provide the Services in accordance with all applicable laws and government regulations
5.2 MESH Diversity may suspend Customer’s use of the Services if MESH Diversity reasonably believes that Customer’s continued use of the Services (a) represents a threat to its network function or integrity, (b) may impair the Services, or (c) may interfere with any other person’s use of the Services.
5.3 Notwithstanding anything to the contrary herein, Customer agrees that MESH Diversity may obtain and aggregate data from use of the Services that is not identifiable with respect to Customer or its Users (“Aggregated Anonymous Data”), and MESH Diversity may use the Aggregated Anonymous Data to analyse, improve, support and operate the Services.
6.1 Customer warrants that it shall: (a) only issue paid-up User Licenses to Users solely for its internal business purposes and User Licenses will not be shared or used by more than one individual User but may be reassigned from time to time to new Users who are replacing former Users who no longer use the Services; (b) be responsible for Users’ compliance with the terms of this Agreement; (c) keep all passwords confidential; (d) maintain reasonable security measures and use commercially reasonable efforts to prevent unauthorized access to, or use of, the Services and notify MESH Diversity promptly of any unauthorized access or use; (e) not alter, obscure, remove, interfere with or add to any of the trademarks, trade names, markings or notices used on Documentation, reports or other materials made available as part of the Services; and (f) use the Services only in accordance with the Documentation and applicable laws and government regulations.
6.2 Customer warrants that it shall not: (a) make the Services available to anyone other than Users; (b) use the Services to store or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) use the Services to store or transmit malicious code; (d) interfere with or disrupt the integrity or performance of the Services; (e) attempt to gain unauthorized access to the Services or their related systems or networks; or (f) access the Services in order to build a competitive product or service or to copy any features, functions or graphics of the Services.
7.2 Customer shall fully comply with all applicable Data Protection Laws and shall take all reasonable steps within Customer’s power to ensure that Customer’s Users comply with all applicable Data Protection Laws.
7.3 If a third party alleges infringement of its data protection rights, MESH Diversity shall be entitled to take measures necessary to prevent the infringement of a third party’s rights from continuing.
8.2 The Customer has sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness or right to use any Customer Data. Except as provided herein, MESH Diversity acquires no right, title or interest from the Customer under this Agreement in or to any Customer Data.
8.3 MESH Diversity shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. MESH Diversity shall not: (a) modify Customer Data; (b) disclose Customer Data except as compelled by law or as expressly permitted in writing by the Customer; or (c) access Customer Data except to provide the Services and prevent or address service or technical problems, or at the Customer’s request in connection with customer support matters.
8.4 MESH Diversity performs regular backups of Customer Data for the purpose of recovery in the event of a failure in MESH Diversity’s data centres. MESH Diversity shall not be liable for the deletion, correction, destruction, damage, loss or failure to store Customer Data unless such deletion, correction, destruction, damage, loss or failure is wholly attributable to the negligence of MESH Diversity, its agents or employees.
9.1 MESH Diversity warrants that: (a) the Services will conform substantially to the description of them contained in the Documentation; (b) it has the right to license the Services; (c) the Services will be provided with reasonable skill and care; (d) the Services will not infringe the Intellectual Property Rights of a third party in any jurisdiction; and (e) it is not prohibited from providing the Services by any statutory or other rules or regulations in any relevant jurisdiction. These warranties shall not: (i) cover deficiencies or damages relating to any third-party components not furnished by MESH Diversity; or (ii) any third party provided connectivity necessary for the provision or use of the Services.
9.2 If during the Term a Customer notifies MESH Diversity that a Service does not meet the above warranty, MESH Diversity will, at its option, either: (a) terminate the Service and return the amount paid for the Service prorated for the unexpired portion of the Term; or (b) update such Service to make it conform. These are Customer’s only remedies for breach of warranty unless other remedies are required to be provided under applicable law.
9.3 Except as expressly stated in this Agreement, all warranties and conditions, whether express or implied by statute, common law or otherwise (including but not limited to satisfactory quality and fitness for purpose), are hereby excluded to the fullest extent permitted by law. No warranty is made regarding the results of usage of the Services or that the functionality of the Services will meet the requirements of the Customer or that the Services will operate uninterrupted or error free. This Section 9.3 shall survive the termination of this Agreement.
10.1 The Customer will indemnify, defend, and hold harmless MESH Diversity, its affiliates, subsidiaries, suppliers or agents from and against all liabilities, damages, costs and expenses (including settlement costs and reasonable legal costs) arising out of any claim by a third party against MESH Diversity and its affiliates, subsidiaries, suppliers or agents regarding: (a) Customer Data; (b) Customer’s use of the Services in breach of this Agreement; (c) Users’ use of the Services in breach of this Agreement; or (d) the processing of Personal Data on behalf of, and in accordance with the instructions of the Customer.
10.2 MESH Diversity will indemnify, defend, and hold harmless the Customer from and against all liabilities, damages, costs and expenses (including settlement costs and reasonable legal costs) arising out of any claim by a third party against Customer that use of MESH Diversity’s technology to provide the Services infringes the third party’s Intellectual Property Rights. In no event will MESH Diversity have any obligations or liability under this Section 10.2 arising from: (a) use of any Services in a modified form or in combination with materials not furnished by MESH Diversity; and (b) any content, information, or data provided by the Customer, Users, or other third parties.
10.3 If MESH Diversity believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, then MESH Diversity may: (a) obtain the right for the Customer, at MESH Diversity’s expense, to continue using the Services; (b) provide a non-infringing functionally equivalent replacement; or (c) modify the Services so that they no longer infringe. If MESH Diversity does not believe the options described in this section are commercially reasonable then MESH Diversity may suspend or terminate Customer’s use of the affected Services (with a pro-rata refund of prepaid fees for the Services).
10.4 The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defence, except that: (a) any settlement requiring the party seeking indemnification to admit liability requires prior written consent of the indemnifying party, not to be unreasonably withheld or delayed and (b) the other party may join in the defence with its own counsel at its own expense. The indemnities above are each party’s only remedy under this Agreement for any breach by the other party of a third party’s Intellectual Property Rights.
11.1 Subject to Section 11.3, the aggregate liability of each party to the other (whether in contract, tort or otherwise) arising under or in connection with this Agreement is limited to actual direct damages not to exceed the amount paid under this Agreement (excluding taxes) for the Services provided during the twelve (12) month period prior to the date on which the cause of action arose.
11.2 In no event shall either party be liable to the other whether arising under this Agreement or in tort (including negligence or breach of statutory duty), misrepresentation or however arising, for any incidental, special, punitive or consequential damages, whatsoever, whether arising in negligence, tort, statute, equity, contract, common law or any other cause of action or legal theory, including but not limited to lost profits, lost revenue, loss of data, lost business, failure to realize expected savings or any other commercial or economic loss of any kind whatsoever, arising out of or in connection with this Agreement or the provision of the Services, even if a party knew that such losses were possible or were reasonably foreseeable.
11.3 The limits on liability set out above in this Section 11 (Limitation of Liability) apply to the fullest extent permitted by applicable law, but do not apply to: (a) any indemnities given under Section 10 (Indemnities); or (b) a breach of the other party’s Intellectual Property Rights.
12.1 Each party shall protect all Confidential Information which the other party provides to it (whether orally, in writing or in any other form) using the same standards as the recipient applies to its own comparable confidential information, but in no event less than reasonable measures. Each party’s obligations will not apply to information: (i) already known to it at the time of disclosure; (ii) in the public domain or publicly available; (iii) available from a third party who is under no such obligation of confidentiality; or (iv) independently developed by it.
12.2 Recipient agrees that it will use all Confidential Information solely to fulfill its obligations under this Agreement, and for no other purpose, and that it will hold all Confidential Information in the strictest confidence. To that end, Recipient will keep all Confidential Information in a secure place; take all necessary measures to prevent unauthorized access, use, reproduction or disclosure thereof; and limit access to the Confidential Information only to individuals on a need-to-know basis.
12.3 Each party may disclose confidential information to its legal advisers to protect its own legitimate interests and to comply with any legal or regulatory requirements. If any court, regulatory authority, professional body or legal process requires the recipient to disclose information covered by this confidentiality obligation, then the recipient may make any such disclosure; provided that the recipient will, if permitted by law, advise the other party promptly of any such requirement and cooperate, at such other party’s expense, in responding to it. Upon the termination or expiration of the Agreement each party will return the confidential information of the other party, or certify in writing its destruction, except that a party may retain the confidential information it has received for purposes of its records management program or in compliance with its legal or governance obligations.
12.4 The parties acknowledge and agree that any unauthorized use or disclosure of Confidential Information may cause irreparable harm and result in significant damages to the disclosing party, which harm and/or damages may be difficult to ascertain. Accordingly, in the event of any breach or threatened or anticipated breach of this Agreement by a recipient party, the disclosing party shall be entitled to immediately, without the posting of a bond or other security and without proof of actual damages, to equitable relief, including specific performance and temporary, preliminary and permanent injunctive relief, in addition to any other remedies that may be available at law or in equity
13.1 MESH Diversity may give notices in connection with this Agreement by means of electronic mail to the Customer’s e-mail address on record in MESH Diversity’s account information or by registered post or courier to the Customer’s address on record in MESH Diversity’s account information. Notices in connection with changes in the Services and policies shall be posted online within the Services. Notices shall be deemed to have been given when received by the Customer.
13.2 The Customer may give notices in connection with termination or modification of the Services ordered under any Order Form via e-mail to the Customer’s MESH Diversity customer service contact. All other notices to MESH Diversity required by this Agreement shall be sent by electronic mail to email@example.com or by registered post or courier to MESH Diversity at the following address:
MESH Diversity Inc.
105 Barrington Crescent
Moncton NB E1G 4V4
Notices shall be deemed given when received by MESH Diversity.
14.1 MESH Diversity may change the Services or its policies relating to the Services by giving Customer appropriate notice of such changes, which notice may be provided by email to Customer’s email address of record with MESH Diversity or by posting in the Services.
14.2 MESH Diversity may from time to time place limits on use of the Services, for example, the number and type of reports the Customer can generate through the Services.
14.3 MESH Diversity may amend this Agreement by giving Customer thirty (30) days’ prior notice of the amendment, which notice may be provided by e-mail to Customer’s email address of record with MESH Diversity or by posting in the Services. By continuing to use our Services after revisions are posted, you are agreeing to the amended Agreement.
15.1 This Agreement may not be assigned by either party without the prior written approval of the other party but may be assigned with notice but without required consent to: (a) an affiliate of either party; (b) an acquirer of assets of either party; or (c) a successor by sale or merger to either party. Any purported assignment in breach of this section shall be null and void. In the event of assignment by the Customer under the provisions of (a), (b) or (c) in this section 15.1, MESH Diversity reserves the right to amend the terms of the Order Form for the Services.
15.2 Any controversy, dispute or claim of any kind between the parties shall be governed by and interpreted in accordance with the laws of the province of Ontario without regard to any provisions governing conflicts of laws. Each party attorns to the exclusive jurisdiction of the courts in Toronto, Ontario in any action arising out of or relating to this Agreement. However, this choice of jurisdiction does not prevent either party from seeking injunctive relief with respect to a breach of any Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
15.3 If a court holds any provision of this Agreement to be illegal, invalid or unenforceable, the rest of the document will remain in effect and this Agreement will be amended to give effect to the eliminated provision to the maximum extent possible.
15.4 A waiver of any breach of this Agreement is not a waiver of any other breach. Any waiver must be in writing and signed by an authorized representative of the waiving party.
15.5 This Agreement constitutes the entire agreement and understanding between the parties and supersedes any prior or contemporaneous agreements, representations, negotiations and discussions between the parties concerning the subject matter hereof.
15.7 Neither party will be liable for any breach of this Agreement due to Force Majeure. However, this section will not apply to Customer’s payment obligations under this Agreement. As soon as practicable after an event of Force Majeure arises, the party affected by Force Majeure must notify the other party of the extent to which the notifying party is unable to perform its obligations under this Agreement.
15.8 MESH Diversity and the Customer are independent contractors. Neither party nor any of their employees or other agents shall be deemed to be an employee, agent, servant, joint venture or partner of the other party.
15.9 This Agreement shall not confer any rights or remedies upon any person other than the parties and their respective successors and permitted assigns.
Questions regarding this Agreement may be directed to MESH Diversity by electronic mail to firstname.lastname@example.org or by registered post, courier, or regular mail addressed to the address noted in section 13.2 above.
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