TRACTION COMPLETE TECHNOLOGIES INC.
TERMS
This is a legal agreement between Traction Complete Technologies Inc. (“TCT”) and Client as listed in the Order Form (the “Terms”). These Terms governs the Client’s use of the Services.
AGREEMENT:
In consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, TCT and Client agree as follows:
- Definitions. Unless the context requires otherwise, capitalized terms in these Terms have the following meanings:
(a) “Affiliate” means, with respect to a party, any person, partnership, joint venture, corporation, or other entity, that directly or indirectly controls, is controlled by, or is under common control with such party.
(b) “Applicable Law” means, with respect to a party, any local, state, provincial, federal and foreign laws or orders of any governmental or regulatory authority applicable to such party for its provision or use of the Services.
(c) “Client Data” means any information that enters the Services by or on behalf of the Client and includes any content, data and information that is collected or generated by the Services that result from the Client’s use of the Services.
(d) “Confidential Information” means: (i) the content of these Terms and any Order Form; (ii) Client Data, including any statistics or other user data relating to the Services which specifically identify Client; (iii) any information designated in writing, or orally at time of disclosure, by the disclosing party as “confidential” or “proprietary”; (iv) any information, technical data, or know-how disclosed by a party to the other hereunder that from the relevant circumstances should reasonably be known by the receiving party to be confidential, including, but not limited to, either party’s research, services, inventions, processes, specifications, designs, drawings, diagrams, concepts, marketing, techniques, documentation, source code, customer information, personally identifiable information, pricing information, business and marketing plans or strategies, financial information, and business opportunities.
(e) “End User” means each of the Client’s employees, consultants, contractors, partners, representatives, agents, or other individuals who is authorized by Client to use the Services in accordance with these Terms and for whom a Salesforce license has been properly obtained.
(f) “Fees” means the aggregate of all fees payable by Client to TCT for the use of the Services in accordance with these Terms, plus all applicable duties, levies, and taxes in association with such fees.
(g) “Initial Term” means the Initial Term as defined in the Order Form.
(h) “Intellectual Property” means all systems, applications, software code (in any form, including source code, executable or object code), algorithms, tool-kits, technology, widgets, formulae, programs, concepts, databases, designs, diagrams, documentation, drawings, charts, ideas, inventions (whether or not such inventions are patentable), know-how, trademarks (whether registered or not), brand names, logos, slogans, methods, techniques, models, procedures, and processes.
(i) “Intellectual Property Rights” means all copyrights, moral rights, rights associated with works of authorship, trademark rights, trade name rights, trade secret rights, patent and industrial property rights (whether registered or not), and other proprietary rights, in Intellectual Property.
(j) “Order Form” means the order form containing Client’s agreement to purchase the Services, number of licenses and cost per license for the Services.
(k) “Salesforce” means the Salesforce.com software as a service (SaaS) platform, including, without limitation, the Salesforce CRM software.
(l) “Services” means: i) TCT’s software application currently described as “TCT Traction Complete”, including any updates, upgrades, patches, technology, material, modifications, bug fixes, enhancements, data, features, related website, related technologies, and contents, as it may be added or removed by TCT from time to time and including all written information, documentation, and materials provided to Client in respect of same; and ii) any software, materials or content made available in connection with the Services.
(m) “Subscription Term” means the Initial Term plus each Renewal Term.
2. Provision, Use and License.
(a) Client will use the Services only for its own internal purposes and business operations. Client will only use the Services during the Subscription Term. Client will not use the Services as a service for any third party.
(b) Client agrees that it will not use the Services in a manner that: (i) infringes or violates the intellectual property rights or other rights of TCT or any third party; (ii) violates any law or regulation; (iii) is harmful, fraudulent, deceptive, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, or otherwise objectionable; or (iv) accesses the source code, modifies , copies, creates derivative works from, reverse engineers, decompiles or disassembles the Services.
(c) Upon the termination or expiration of the Subscription Term, Client will immediately discontinue use of the Services and Client will delete or destroy all electronic and physical stand-alone copies of the Services.
3. Support. TCT will provide reasonable telephone, web-based, and / or e-mail technical support to Client during normal business hours (PST) within two business days of receipt of a written support query to TCT.
4. Confidentiality. Neither party will, subject to the licenses granted in Section 7 below, use or disclose any Confidential Information of the other party except as specifically contemplated herein. The restrictions in this Section do not apply to information that: (i) is independently developed by the receiving party without access to the other party’s Confidential Information; (ii) becomes publicly known through no breach of this Section by the receiving party; (iii) has been rightfully received from a third party authorized to make such disclosure; or (iv) has been approved for release in writing by the disclosing party. The receiving party may disclose Confidential Information to any applicable legal authority if such disclosure is required to be disclosed by a legal or government authority. Each party agrees that it will maintain safeguards as necessary, in its reasonable judgment, to ensure that Confidential Information is not used or disclosed except as provided herein. For the avoidance of doubt, the parties agree that the provisions of this Section hereby supersede any prior written or oral agreements between the parties regarding confidentiality or nondisclosure. The receiving party will, within 30 days of the termination or expiration of these Terms or the completion, abandonment or other termination of the Services under an Order Form, upon receipt of a written request from the disclosing party within such 30 day time period, promptly return or destroy all of the disclosing party’s Confidential Information, in the receiving party’s (or its subcontractor’s, Affiliate’s or agent’s) control.
5. Indemnification.
(a) TCT will defend, indemnify and hold Client harmless against any loss, damage or costs (including reasonable attorneys’ fees) arising from third party claims, demands, suits, or proceedings (each, a “Claim”) brought against the Client pertaining to any of the following: (1) any allegation that Client’s use of the Services as contemplated hereunder infringes or misappropriates a third party’s Intellectual Property Rights (each, an “Infringement Claim”), or (2) any failure by TCT to comply with Applicable Law. The Client will: (a) promptly give written notice of any such Claim to TCT; (b) give TCT sole control of the defense of the Claim; and (c) provide to TCT, at TCT’s cost, all reasonable assistance. TCT’s obligations under Section 5(a)(1) do not apply with respect to portions or components of the Services: (i) not provided by TCT under these Terms; (ii) resulting from the Client Data; (iii) that are modified or combined by Client with other products, processes or materials where the alleged infringement relates to such combination; (iv) where the Client continues the allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement; and (v) where Client’s use of the Services is in violation of the Terms. If TCT believes that the Services may be subject to any Infringement Claim, and if Client’s use of the Services is held to infringe and its use is enjoined, then TCT will, at TCT’s own expense and option: (A) procure for Client the right to continue using the Services; (B) replace same with non-infringing Services; or (C) modify the Services so that they become non-infringing. If none of the foregoing is available on terms that are commercially reasonable for TCT, then TCT may terminate Client’s rights to access and use the infringing portion of the Services, in which case TCT will refund Client a pro rata amount of any prepaid fees applicable to the unutilized portion of the Subscription Term of the terminated Services.
(b) Client will defend, indemnify and hold TCT harmless against any loss, damage or costs (including reasonable attorneys’ fees) arising from Claims: (1) alleging that TCT’s use of the Client Data in accordance with these Terms infringes or misappropriates a third party’s Intellectual Property Rights; and (2) for Client’s violation of the License terms as set out in Section 7(a) of this Agreement.
6. Third Party Developers. The Services may include features that permit Client to connect the Services to applications, such as Salesforce or other third-party applications requested by the Client (“Third Party Applications”), developed by third parties (“Third Party Developers”). No representation or warranty by such Third Party Developers is binding on TCT nor shall breach of such representation or warranty by a Third Party Developer relieve Client of its obligations to TCT and the Client shall be responsible for the costs of such Third Party Applications.
7. Intellectual Property.
(a) All Intellectual Property in the Services or made available or disclosed to Client in the provision of the Services are and shall remain the sole and exclusive property of TCT and except for the limited license to use the Intellectual Property as part of Client’s use of the Services in accordance with the Terms (the “License”), no right, title, or interest is granted in such Intellectual Property. TCT owns all rights, title and interest, including all Intellectual Property Rights, in and to any improvements to the Services or any new programs, upgrades, modifications or enhancements thereto, even when such refinements and improvements result from Your requests or comments. Upon TCT’s request, Client shall reasonably assist TCT to transfer and assign to TCT all rights, title, and interest which Client may have to any such Intellectual Property.
(b) Client will retain all right, title and interest in and to Client’s documents, messages, graphics, images, files, data and Confidential Information, transmitted to, or collected by, TCT in connection with the Services. Client grants to TCT a non-exclusive royalty-free, license to use the foregoing solely for the purposes of providing the Services to the Client during the Subscription Term. Such rights shall include permission for TCT to generate and publish aggregate, anonymized reports on system usage, trends and type, provided they do not conflict with section 4 [Confidentiality].
8. Fees and Payment Terms.
(a) All Fees will be invoiced at the beginning of the Initial Term and any Renewal Term thereof and are due within thirty (30) days of the date the Client receives the invoice. If Client refuses to pay such invoices within 10 business days of being notified that an invoice is overdue, TCT may terminate the Client’s access to the Services immediately.
(b) In the event Client increases the number of Salesforce licenses during the Subscription Term, Client shall notify TCT within 10 business days and TCT may then charge Client Fees for such additional Salesforce licenses in accordance with the fee per license as stated on the then current Order Form.
(c) Client is solely responsible for payment of any goods and services taxes, sales taxes, value added taxes, and excise taxes, as applicable, resulting from Client’s use of the Services.
(d) Except where otherwise expressly provided, all monetary amounts applicable to the Terms are stated and shall be paid in U.S. Dollars (USD).
9. Term.
(a) The Terms will become effective on the date of the first Order Form issued and accepted hereunder and will continue until the expiration of the Subscription Term, unless otherwise earlier terminated as provided below.
(b) At the end of the Initial Term, the Client’s License to use the Services will be automatically renewed for succeeding one year terms (each, a “Renewal Term”), subject to the Terms, unless either party gives written notice to the other party at least forty five (45) days prior to the expiration of the then current Initial Term or Renewal Term, as the case may be. The Fees for each Renewal Term will be TCT’s then current published rates, based on the number of licenses granted for the Services, unless otherwise agreed to by the parties, in writing.
10. Termination.
(a) Termination for Convenience. At the end of the Initial Term, either party may terminate the Terms without cause upon providing no less than sixty (60) days prior written notice to the other.
(b) Termination for Breach. During the Subscription Term, either party may terminate the Terms and the accompanying Order Form: (i) in the case of the other party’s material breach of the Terms if such breach has not been cured within thirty (30) days, or such time period as is mutually agreed upon by the parties, of the provision of notice of such breach to the breaching party.
(c) Effect of Termination. In the event of termination for reasons other than TCT’s material breach: (i) the Client will remain liable for any amount due under any applicable Order Form; and (ii) TCT will not refund any prepaid Fees. In the case of termination for TCT’s material breach, TCT will provide a pro-rated refund of any prepaid Fees. Upon termination of the Services, all rights and licenses granted under these Terms shall immediately terminate. Each party shall delete the other party’s Intellectual Property and all Confidential Information in its possession within 30 days of termination in accordance with Section 4.
(d) TCT may terminate these Terms upon notice to Client in the event that the Services are no longer available for use in conjunction with Salesforce’s services and/or the Services are no longer able to access the information databases required for the Services. In the event TCT terminates these terms pursuant to this Section 10(d), TCT shall promptly provide a pro-rated refund of any prepaid Fees.
11. Warranties.
(a) Each party represents and warrants to the other party that: (i) it has the full right, power and authority to enter into the Terms; and (ii) the Terms are a valid binding obligation of such party.
(b) TCT warrants, represents and agrees that the Services, as utilized pursuant to the terms of the Terms: (i) will not transmit a virus, Trojan horse, worm, time bomb, or other harmful computer code, file, or program to the Client’s systems; and (ii) will be performed in a workmanlike manner in accordance with generally accepted industry standards.
(c) EXCEPT AS OTHERWISE EXPRESSLY STATED HEREIN, TCT MAKES NO (AND HEREBY DISCLAIMS) WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY MATTER, AND EXPRESSLY DISCLAIMS THE WARRANTIES OR CONDITIONS OF NONINFRINGEMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE. TCT DOES NOT WARRANT THE RESULTS OF USE OF THE SERVICES OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
12. Limitation of Liability
(a) Consequential Damages. NEITHER PARTY SHALL BE LIABLE TO THE OTHER FOR ANY INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY CHARACTER, INCLUDING WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS OR GOOD WILL, WORK STOPPAGE, LOSS OF INFORMATION OR DATA, OR LOSS OF REVENUE OR PROFIT, RESULTING FROM THE PROVISION OF THE SERVICES, OR OTHER FINANCIAL LOSS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF THE LEGAL THEORY ASSERTED, WHETHER BASED ON BREACH OF CONTRACT, BREACH OF WARRANTY, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR OTHERWISE.
(b) EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, NEITHER PARTY’S AGGREGATE AND TOTAL LIABILITY UNDER THE TERMS FOR ANY AND ALL CLAIMS ARISING OUT OF THESE TERMS SHALL EXCEED AMOUNTS PAID OR DUE BY CLIENT TO TCT UNDER THE ORDER FORM IN THE 12 MONTHS PRIOR TO THE DATE THE CLAIM AROSE. Some jurisdictions do not allow limitation of liability in certain instances, and in such a case, the foregoing exclusions and limitations shall apply to the maximum extent permitted by applicable mandatory law (and TCT’s liability shall be limited or excluded as permitted under mandatory applicable law).
(c) TCT has no special relationship with or fiduciary duty to the Client. The Client acknowledges that TCT has no control over, and no duty to take any action regarding (other than log-in authentication): which of the Client’s users gain access to the Services; how the Client may interpret or use the Services; or what actions the Client may take as a result of having used the Services.
13. Dispute resolution.
(a) Negotiation. If there is a dispute or difference (“Dispute”) between the parties arising out of or in connection with the Terms, then within five (5) business days of a party notifying the other party in writing of the Dispute, a senior representative from each party shall meet and use all reasonable endeavours, acting in good faith, to resolve the Dispute by joint discussions.
(b) Court proceedings and other relief. If such escalation fails to resolve the issue, it shall be settled by arbitration administered by final and binding arbitration initiated and conducted according to the American Arbitration Association (the “Arbitration Rules”), and judgment upon the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitration shall be conducted in New York. Notwithstanding the foregoing, either party may seek injunctive relief in any court of competent jurisdiction to protect its Intellectual Property Rights. All arbitrators shall be qualified by education, training, and experience in the subject matter of the dispute.
(c) Continued Performance. Both parties must continue performing their respective obligations and responsibilities under the Terms while any Dispute is being resolved in accordance with this Section 13, unless and until such obligations are terminated or expire in accordance with the provisions of the Terms.
(d) Equitable Remedies. The parties agree that monetary damages may be an inadequate remedy for any breach or threatened breach of any provision of the Terms concerning Confidential Information, Intellectual Property Rights or other matters for which equitable rights may be granted. Accordingly, such provision may be enforced by injunction or other order of a court of competent jurisdiction.
14. Miscellaneous.
(a) Proper Law. The Terms shall be governed by and construed in accordance with the laws of the state of New York and the parties agree to attorn to the exclusive jurisdiction of the state of New York.
(b) Survival. Sections 4, 5, 7, and 12 of these Terms shall survive any expiration or termination of the Terms for any reason.
(c) Headings. The headings used in these Terms are for convenience and reference only and shall not affect the construction or interpretation of these Terms.
(d) Assignment. Neither party may assign any of its rights or obligations hereunder without the prior written consent of the other party, such consent not to be unreasonably withheld. Notwithstanding the foregoing, either party may assign or transfer the Terms in connection with a merger or acquisition provided the assigning party provides notice to the other party. The Terms shall be binding upon and shall inure to the benefit of a party’s authorized successors and permitted assigns.
(e) Notice. Any notice or communication from one party to the other required or permitted to be given hereunder shall be in writing and either personally delivered, sent by postal service, sent via courier (with evidence of delivery in any case), or secured electronic means. All notices shall be in English and shall be effective upon actual receipt, except for notices sent by e-mail or other electronic means, which shall be deemed to have been received the day after such notices are sent.
Notices to TCT shall be sent to attention: Legal Department, Address: PO Box 44156 RPO Kensington Sq
Burnaby, BC V5B 4Y2, Email: legal@tractioncomplete.com
Notices to Client shall be sent to the Client contact listed on the most current Order Form.
Either party may change the address for notice by providing written notice to the other party from time to time.
(f) Force Majeure. Neither party to the Terms shall be liable for any failure to comply with its obligations under the Terms if the failure to comply is caused by or results from conditions or causes beyond its reasonable control including, but not limited to: shortage of water, power, acts of God, war, terrorism, riots, fire, flood, explosion, governmental controls or regulations, embargoes, wrecks or delays in transportation, labor disputes, civil insurrection, civil or military authority, inability to obtain necessary labor, materials of manufacturing faculties due to such causes or delays of subcontractors or supplies of each party in furnishing materials or supplies due to one or more of the foregoing causes. In an event of a force majeure, each party shall be allowed a reasonable period of time to fulfill the obligations under the Terms having regard to the applicable circumstances. An event of force majeure shall not relieve the Client of its payment obligations pursuant to the Terms.
(g) Waiver. The waiver by any party hereto of a breach or a default of any provision of the Terms by another party shall not be construed as a waiver of any succeeding breach of the same or any other provision, nor shall any delay or omission on the part of either party to exercise or avail itself of any right, power or privilege that it has, or may have hereunder, operate as a waiver of any right, power or privilege by such party.
(h) Relationship. The parties are independent contractors. These Terms shall not be construed as creating any partnership, joint venture, or agency among the parties and no party shall be deemed to be the legal representative of any other party for the purposes of these Terms. No party shall have and shall not represent itself as having, any authority to act for, to undertake any obligation on behalf of any other party, except as expressly provided in these Terms.
(i) Gender, Plural and Singular. In these Terms, unless the context otherwise requires, the masculine includes the feminine and the neuter genders and the plural includes the singular and vice versa, “or” is not exclusive and “including” is not limiting, whether or not such non-limiting language (such as “without limitation” or “but not limited to”) is used with reference to it, and modifications to the provisions of these Terms may be made accordingly as the context requires.
(k) Alterations. No alteration or amendment to the Terms shall take effect unless it is in writing duly executed by each of the parties
(l) Invalidity. The invalidity or unenforceability of any provision of these Terms shall not affect the validity or enforceability of any other provision and any such invalid or unenforceable provision shall be deemed to be severable
(m) Entire Agreement. The provisions of the Terms and any Order Forms constitute the entire agreement between the parties and supersede all previous communications, representations and agreements, whether oral or written, between the parties with respect to the subject matter of the Terms and such Order Forms.
(n) No Strict Construction. The language in all parts of the Terms shall in all cases be construed as a whole and neither strictly for, nor strictly against, any of the parties to the Terms.
(o) Inurement. The Terms shall inure to the benefit of and be binding upon the parties and, except as otherwise provided or as would be inconsistent with the provisions of the Terms, their respective heirs, executors, administrators, successors and permitted assigns.
(p) U.N. Convention. The parties agree that the United Nations Convention on the International Sale of Goods shall not apply to the Terms and shall not apply to any Order Form issued in connection herewith.
Last Updated June 22, 2022
