This Service Agreement (the “Agreement”) covers the services 9345-9758 Quebec Inc. (“Midori”) provide to you (the “Customer”).
A. Subscription to Midori
During the Term and in accordance with this Agreement, Customer may access and use the products which Customer subscribed to, whether by paid subscription, free trial or pay per use (each a “Product”), as referenced in the quote or invoice executed by Customer, or on the Midori plan selection form (the “Order Form”). Each Product may include updates, support services or documentation and each are subject to the terms of this Agreement. Midori may add to, change or discontinue any component of the Products at any time; provided however, that no such change shall materially increase Customer’s obligations or materially decrease Customer’s entitlements under this Agreement. Customer is responsible for all actions taken under its Midori account credentials, regardless of whether such actions are taken by Customer, their employees or a third party. Customer will safeguard all account credentials in its possession or under its control. Midori is not liable for any loss or damage arising from any unauthorized use of Customer’s account.
2. Grant of License
During the Term, Midori grants Customer a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use, and to permit its employees and all other users who access and use the Products on Customer’s behalf (collectively, the “Users”) to access and use the Products on the terms set forth in this Agreement. Customer agrees that all rights, title and interest in and to all the intellectual property rights in the Products, and all modifications, extensions, scripts and other derivative works of the Products provided or developed by Midori are owned exclusively by Midori. All rights not granted to Customer in this Agreement are reserved by Midori.
3. License Restrictions
Customer and any Users shall not (and shall not allow any User or third party to):
- decompile, disassemble, reverse engineer or attempt to reconstruct or discover any source code, underlying ideas, algorithms, file formats or programming or interoperability interfaces of the Products, by any means whatsoever;
- distribute viruses or other harmful or malicious computer code via or into the Products;
- engage in any conduct that disrupts or impedes a third party’s use and enjoyment of the Products;
- remove any product identification, copyright or other notices from the Products;
- sell, lease, lend, assign, sublicense, grant access or otherwise transfer or disclose the Products in whole or in part, to any third party;
- use the Products for timesharing, service bureau or hosting purposes or otherwise use, resell, sublicense, distribute or transfer or allow others to use the Products to or for the benefit of third parties;
- modify or incorporate into or with other software or create a derivative work of any part of the Products, unless agreed to in writing by Midori;
- use the output or other information generated by the Products for any purpose other than as contemplated by this Agreement;
- use the Products for any use other than Customer’s internal business use;
- use unauthorized modified versions of the Products, including without limitation, for the purpose of building a similar or competitive product or service or for the purpose of obtaining unauthorized access to the Product; or
- use the Products in any way that is contrary to applicable local, state/provincial, federal, regional and foreign laws, including without limitation those relating to fiscal laws and VAT regulations, as well as privacy, data protection, electronic communications and anti-spam legislation. Midori retains all title to, and except as expressly licensed herein, all rights to the Products, all copies, derivatives and improvements thereof, and all related materials
4. Term of Agreement
The “Initial Term” shall mean the number of months in the term as specified in the Order Form, beginning on the date specified in the Order Form. Upon expiration of the Initial Term and unless otherwise stated in the Order Form, this Agreement will automatically renew for a duration equal to the lesser of (i) the Initial Term or (ii) one year (each a “Renewal Term”, and the Initial Term and all Renewal Terms collectively, the “Term”) until terminated by Customer or Midori by delivery of written notice to the other party at least ninety (90) days prior to the end of the Initial Term or then-current Renewal Term, as applicable. In the case of Products licensed on a trial basis, the Term of this Agreement shall be limited to the duration of the trial period identified in the Order Form. Except as otherwise specified herein, Customer may not terminate this Agreement prior to the expiration of the Term. If Customer is located in the Province of Quebec, Customer expressly waives the application of Sections 2125 and 2129 of the Civil Code of Quebec.
5. Fees and Payment
Customer shall pay Midori the annual and/or monthly fees (“Fees”) specified in the Order Form, in accordance with the timing and currency specified in the Order Form. All payments by Customer to Midori under this Agreement are non-refundable and made via the payment method specified by Customer in the Order Form, or as otherwise agreed in writing by the parties. Customer shall undertake any additional actions reasonably requested by Midori to implement any automated Fee payment process. Any amounts past due shall accrue interest at a rate which is the lesser of: one and a half percent (1.5%) per month or the maximum rate allowable by law. Any assessment of late fees shall be without prejudice to Midori’s right
to suspend Customer’s access to the Products. Any applicable goods and services or sales taxes will be added to Fees owing pursuant to this Agreement.
6. Confidential Information
Midori and Customer (each a “Receiving Party”) shall each retain in confidence all information received from the other party (the “Disclosing Party”) pursuant to or in connection with this Agreement that the Disclosing Party identifies as being proprietary and/or confidential or that, by the nature of the circumstances surrounding the disclosure, ought in good faith to be treated as proprietary and/or confidential (“Confidential Information”), and will make no use of such Confidential Information except as necessary to fulfill their respective obligations under this Agreement. Each party shall treat the terms and conditions
of this Agreement as confidential; however, either party may disclose such information in confidence to its legal and financial consultants as required in the ordinary course of that party’s business. Notwithstanding the foregoing, the restrictions set forth above will not apply to
- information previously known to the Receiving Party without reference to the Disclosing Party’s Confidential Information,
- information which is or becomes publicly known through no wrongful act of the Receiving Party,
- information that is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information, or
- information required to be disclosed pursuant to applicable law by enforceable orders of the court or other governmental authority. The foregoing shall also not prevent Midori from using Customer data on an aggregate and anonymized basis. Customer shall ensure that its Users fully comply with the terms of this Section and shall be responsible for any damages suffered by Midori as a result of a User’s failure to do so.
7. Customer’s Representations
7.1 Customer represents and warrants that currently and throughout the Term (i) Customer is fully authorized to enter into this Agreement and that Customer and any Users are fully authorized to utilize the Products, (ii) Customer and any Users are and will remain in compliance with all Midori policies, applicable laws and regulations with respect to its and their use of the Products and activities related to this Agreement, including but not limited to fiscal and privacy laws; and (iii) if Customer or any of its Users imports lists into the Products for the purpose of sending electronic communication (e.g., email, text messages), or otherwise collects electronic addresses for the purpose of sending electronic messages, then Customer warrants that each person on such list has previously opted-in to receive promotional electronic communications from Customer (where applicable) and that the content of such communications by Customer will comply with applicable laws and regulations.
7.2 Customer represents and warrants that currently and throughout the Term, Customer and any Users are fully authorized to publish, and authorize Midori to publish on behalf of Customer, without the necessity of obtaining any further permissions from or payments to any third party, all of the materials provided for publication on Customer’s Site, including without limitation, text, logos, photos and other graphics.
8. Customer Data and Privacy
8.1. “Customer Data” means any data that Customer or its Users input into the Products for processing in connection with this Agreement, including any personally-identifiable information (“Personal Data”) forming part of such data.
8.2. Customer may select the Personal Data it inputs into the Products at its sole discretion; Midori has no control over the nature, scope, origin, and/or the means by which Customer acquires Personal Data processed by the Products. Midori will comply, and will ensure
that its personnel comply, with the requirements of applicable privacy laws and regulations governing Customer Personal Data in Midori’s possession or under its control. Customer is solely responsible for ensuring that it complies with any legal, regulatory or similar restrictions applicable to the types of data Customer elects to process with the Products. Customer remains responsible for properly handling and processing notices regarding Personal Data of Customer’s clients and Users.
8.3. The Products grant Customer the ability to independently backup and archive Customer Data. Accordingly, Customer is responsible for performing regular backups of Customer Data. Nevertheless, Midori will regularly perform backups of Customer Data stored in the Products. Midori will assist Customer in recovering and restoring Customer Data to the Products to the extent commercially feasible. Customer understands and agrees that Midori is not responsible for any loss or corruption of Customer Data or other software.
8.4. Midori uses and protects Customer Data, including information transmitted via the Products, in accordance with Midori’s Privacy Policy, located at https://support.getmidori.com/help/en-ca/6-legal/19-privacy-policy (the “Privacy Policy”). The Privacy Policy is incorporated into this Agreement by reference. In addition to the permissions granted in the Privacy Policy, Customer allows Midori to use and share non-personal data with third parties to build anonymous data profiles, provide segmented marketing information, create aggregate statistical reports, and improve current and new products and services.
9. Feedback
Customer agrees that any materials that it provides to Midori, including but not limited to questions, comments, suggestions, ideas, plans, notes, drawings, original or creative materials or other information regarding Midori or the Products, whether such materials are provided in email, feedback forms, or any other format, shall belong exclusively to Midori, without any requirement to acknowledge or compensate Customer.
10. Third Party Services
“Third-Party Services” are products, applications, services, software, networks, systems, directories, websites, databases and information from third parties, that one or more Products link to, or which Customer may connect to or enable in conjunction with one or more Products. Customer may decide to enable, access or use any Third-Party Services (as defined above). Customer agrees that access and use of such Third-Party Services shall be governed solely by the terms and conditions of such Third- Party Services, and that Midori is not responsible or liable for, and makes no representations or warranties as to any aspect of such Third-Party Services, including, without limitation, their content or data practices (including with regards to Customer Data and Personal Data) or any interaction between Customer and the provider of such Third- Party Services, regardless of whether or not such Third-Party Services
are provided by a third party that is a member of a Midori partner program or otherwise designated by Midori as “certified”, or “approved” by or “integrated” with Midori. Any use by Customer of Third-Party Services shall be solely between Customer and the applicable third-party provider. Customer irrevocably waives any claim against Midori with respect to such Third-Party Services. Midori is not liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s enablement, access or use of any such Third-Party Services, or Customer’s reliance on the privacy practices, data security processes or other policies of such Third-Party Services.
11. Maintenance Activities
It may be necessary for Midori to perform scheduled and/or unscheduled repairs or maintenance, or remotely patch or upgrade the Product. This may temporarily degrade the quality of the services or result in a partial or complete outage of the Product. Midori will endeavor to carry out such work during times that will cause the least disruption to Customer’s business. Customer shall cooperate, if necessary, to perform such work.
12. Termination and Suspension
12.1. Termination for Breach. In the event of a material breach of this Agreement by either party, the non-breaching party may terminate this Agreement by giving the breaching party written notice specifying the nature of the breach in reasonable detail and the non-breaching party’s intention to terminate (a “Termination Notice”). If the breach has not been cured within the period ending thirty (30) days following delivery of the Termination Notice, then this Agreement shall automatically terminate.
12.2. Suspension. Notwithstanding the foregoing, Midori may suspend Customer’s access to the Products immediately without notice if Midori, in its sole discretion, believes:
(i) such suspension is required by law;
(ii) there is a security or privacy risk to Customer;
(iii) Customer is infringing or violating the rights of third parties, or acting in a manner that is abusive, profane or offensive;
(iv) Customer does not pay its Fees or any invoices in a timely manner; or
(v) Customer is in breach of any material provision of this Agreement, including its license restrictions or confidentiality obligations. Any suspension of Customer’s access to the Products will not limit or waive Midori’s rights to terminate this Agreement or Customer’s access to the Products.
12.3. Effect of Termination. Upon termination of this Agreement, Customer shall discontinue its use of the Product(s). Notwithstanding the foregoing, termination of this Agreement by Midori shall not limit Customer’s obligation to pay all of the applicable Fees, nor restrict Midori from pursuing any available remedies, including injunctive relief. Any installments that have not yet matured will become due immediately upon termination. Customer agrees that following termination of Customer’s account and/or use of the Product, Midori may immediately deactivate Customer’s account and delete Customer Data. Customer further agrees that Midori shall not be liable to Customer nor to any third party for any termination of Customer’s access to the Product or deletion of Customer Data in accordance with this Agreement. Sections discussing license restrictions, Fees and payment, confidentiality, Customer representation, indemnification, and limitation of liability shall survive termination of this Agreement, along with any other provisions that are intended by their terms to survive.
13. Indemnification
13.1. Customer shall indemnify, defend and hold harmless Midori and its officers, employees, and agents from and against all losses, expenses, liabilities, damages and costs including, without limitation, reasonable attorneys’ fees (collectively “Costs”), to the extent that such Costs are attributable to any breach by Customer or any User, independent contractor, or affiliate thereof, of any representations, warranties or other obligations set forth in this Agreement.
13.2. Midori shall indemnify, defend and hold harmless Customer and its officers, employees, agents and affiliates from and against all Costs, to the extent such Costs are attributable to the Products infringing or misappropriating any registered third party intellectual property right, including trademarks, patents and copyrights if Midori is notified promptly in writing and given authority, information, and assistance for the defense or settlement of any related proceeding.
14. Limitation of Liability
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, MIDORI’S AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE FEES PAID BY CUSTOMER DURING THE THREE-MONTH PERIOD IMMEDIATELY PRECEDING THE DATE THE CLAIM GIVING RISE
TO SUCH LIABILITY WAS FIRST ASSERTED. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, NEITHER PARTY SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, RELIANCE OR PUNITIVE DAMAGES OR LOST OR IMPUTED PROFITS OR ROYALTIES, LOST DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER FOR BREACH OF CONTRACT, WARRANTY, TORT, STATUTORY REMEDY OR ANY OBLIGATION ARISING THEREFROM OR OTHERWISE AND IRRESPECTIVE OF WHETHER EITHER PARTY HAS ADVISED OR BEEN ADVISED OF THE POSSIBILITY OF ANY SUCH LOSS OR DAMAGE. TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, CUSTOMER HEREBY WAIVES ANY CLAIM THAT THESE EXCLUSIONS DEPRIVE IT OF AN ADEQUATE REMEDY. THE PARTIES ACKNOWLEDGE THAT THE PROVISIONS OF THIS SECTION FAIRLY ALLOCATE THE RISKS UNDER THIS AGREEMENT AS BETWEEN THEM. THE PARTIES ACKNOWLEDGE THAT THE LIMITATIONS SET FORTH IN THIS SECTION ARE INTEGRAL TO THE AMOUNT OF FEES CHARGED IN CONNECTION WITH MAKING THE PRODUCTS AVAILABLE TO CUSTOMER AND THAT, WERE MIDORI TO ASSUME FURTHER LIABILITY OTHER THAN AS SET FOR HEREIN, SUCH FEES WOULD OF NECESSITY BE SET SIGNIFICANTLY HIGHER.
15. Disclaimer of Warranties
CUSTOMER ACKNOWLEDGES THAT (i) MIDORI CANNOT GUARANTEE THE RESULTS GENERATED THROUGH THE PRODUCTS, OR THAT THE PRODUCTS WILL BE CONTINUOUSLY AVAILABLE FOR USE WITHOUT INTERRUPTION, (ii) THE PRODUCTS ARE PROVIDED “AS IS”, ON AN “AS AVAILABLE” BASIS WITHOUT ANY REPRESENTION, WARRANTY OR CONDITION OF ANY KIND, AND MIDORI HEREBY DISCLAIMS ALL CONDITIONS, REPRESENTATIONS AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE WITH RESPECT TO THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, ANY (a) IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, (b) IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE OF TRADE, (c) WARRANTY OF TITLE OR NON-INFRINGEMENT; OR (d) STATUTORY REMEDY, AND (iii) MIDORI IS NOT RESPONSIBLE FOR ANY PRODUCT CONFIGURATION SETTINGS OR PRODUCT CHANGES APPLIED BY OR ON BEHALF OF CUSTOMER. MIDORI EXPRESSLY DISCLAIMS ANY SPECIFIC SERVICE LEVEL WARRANTIES OR COMMITMENTS.
16. Assignment and Subcontractors
Customer may not assign any of its rights or obligations under this Agreement without Midori’s prior written consent. Midori may, without Customer’s prior consent, assign its rights and obligations under this Agreement. Subject to the foregoing, the provisions of this Agreement shall be binding on and inure to the benefit not only of the parties hereto but also to their successors and permitted assigns. Midori shall be free to perform all or any part of this Agreement through one or more subcontractors.
17. Governing Law, Venue, Arbitration and Attorneys’ Fees
17.1. This Agreement shall be governed by and interpreted in accordance with the laws of the province of Quebec, Canada. In the event of any controversy or claim arising out of or relating to this Agreement, or the breach or interpretation thereof, the prevailing party in any action or proceeding brought under this Agreement shall be entitled to recover from the other party, in addition to all other relief, its reasonable attorneys’ and other experts’ fees and expenses incurred with respect to such action or proceeding.
17.2. Any claim, dispute or controversy (whether in contract or tort, pursuant to statute or regulation, or otherwise, and whether pre-existing, present or future) arising out of or relating to: (i) this Agreement; (ii) the services or equipment provided by Midori; (iii) oral or written statements, or advertisements or promotions relating to this Agreement or to the services or equipment; or (iv) the relationships that result from this Agreement (collectively the “Claim”) will be determined by arbitration to the exclusion of the courts. Arbitration will be conducted by one arbitrator pursuant to the laws and rules relating to commercial arbitration in the the province of Quebec that are in effect on the date of the notice.
17.3. Customer agrees to waive any right Customer may have to commence or participate in any class action or representative proceeding against Midori related to any Claim and, where applicable, Customer also agrees to opt out of any class or representative proceedings against Midori.
17.4. Notwithstanding the foregoing provisions, (i) each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; and (ii) Midori reserves the right to collect any outstanding amounts that Customer owes to Midori in a court of competent jurisdiction.
18. Export Compliance and Other Restrictions
Products which Midori may provide or make available to Customer may be subject to U.S. export control and economic sanctions laws. Customer agrees to comply with all such laws or regulations as they relate to the access and use of Products. Customer agrees not to access the Product from any jurisdiction in which the provision of the Product is prohibited under U.S. or other applicable laws or regulations (a “Proscribed Country”) or provide access to the Product to any government, entity or individual located in any Proscribed Country. Customer represents, warrants, and covenants that (i) it is not a national of, or company registered in, any Proscribed Country; and (ii) it shall not permit third parties to access or use the Product in violation of any U.S. or other applicable export embargoes, prohibitions or restrictions.
19. General
19.1. If one or more of the provisions of this Agreement is held to be invalid, illegal or unenforceable in any respect by a court of competent jurisdiction, then the validity, legality and enforceability of the remaining provisions of this Agreement shall be unaffected.
19.2. Midori may provide any and all notices, statements and other communications to Customer through either email, posting on its website, an in-product message, or by mail or express delivery service. Midori may also issue communications, including press releases, for the purpose of referencing Customer as a Customer of Midori.
19.3. Neither party shall be deemed in default or otherwise liable for any delay in or failure of its performance under this Agreement (other than Customer’s payment obligations) by reason of any act of God, fire, natural disaster, accident, act of government, shortage of materials, failure of transportation or communication or of suppliers of goods or services, or any other cause to the extent it is beyond the reasonable control of such party.
19.4. This Agreement, including any applicable Order Form and the Privacy Policy constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior or contemporaneous written, electronic or oral communications, representations, agreements or understandings between the parties with respect thereto.
19.5. Midori reserves the right, at any time and upon thirty (30) days’ written notice, to amend this Agreement, including making changes to the Fees and scope of Services.
19.6. Customer has reviewed, understood and accepted the terms and conditions set forth in this Agreement and has either consulted with legal counsel prior to executing this Agreement or has knowingly forgone its right to consult with legal counsel prior to such execution.
19.7. The parties acknowledge that they require that this Agreement be drawn up in the English language, that the English language version prevails and that any translation is for information purposes only.