Terms and Conditions
- Article 1 - Definition
- Article 2 - Services
- Article 3 - Authorization and Restrictions
- Article 4 - Privacy
- Article 5 - Fees and payment
- Article 6 - Intellectual property
- Article 7 - Data
- Article 8 - Confidentiality
- Article 9 - Term and Termination
- Article 10 - Representations and warranties
- Article 11 - Indemnification
- Article 12 - Limitation of liability
- Article 13 - Miscalleaneous
Article 1 - Definition
1.1 As used in this Agreement, the following capitalized terms will have the meanings set forth below.
(a) Access Credentials means any user name, identification number, password, license or security key, security token, personal identification number (PIN) or other security code, method, technology or device used, alone or in combination, to verify an Authorized User’s identity and authorization to access and use the Hosted Services.
(b) Action means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, investigative, regulatory or other, whether at Law, in equity or otherwise.
(c) Affiliate of a Person means any other Person that, directly or indirectly, through one or more intermediaries, controls, is controlled by or is under common control with the first Person.
(d) Aggregate Data means Client Data in anonymized and aggregate form.
(e) Authorized Person means collectively the directors, officers, employees, agents, contractors, mandataries and beneficiaries of a Party.
(f) Authorized User means each of the individuals authorized by a Client to use the Hosted Services under Section 3.1 and the other terms and conditions of this Agreement
(g) Client Data means information, data and other content, in any form or medium, that is collected, downloaded or otherwise received, directly or indirectly from Client or an Authorized User by or through the Hosted Services or that incorporates or is derived from the processing of such information, data or content by or through the Hosted Services, including, without limiting the generality of the foregoing, any Personal Information concerning an Employee of the Client and the account of each Authorized User. For the avoidance of doubt, Client Data includes information reflecting the access or use of the Hosted Services by or on behalf of Client or any authorized User, as well as information regarding an Employee uploaded or otherwise made available on the Service Software, including any Personal Information, other than information, data and other content that is derived by or through the Hosted Services from processing Client Data but that is sufficiently different from such Client Data that such Client Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
(h) Confidential Information has the meaning set forth in Section 8.1.
(i) Disclosing Party has the meaning set forth in Section 8.1.
(j) Effective Date has the meaning set forth in Section 2.3.
(k) Employee means an employee or external consultant of the Client whose human relations file is managed, in whole or in part, through the Services.
(l) Fees means all fees for the Services and other consideration, payable hereunder, as detailed in Schedule B hereto or on an Order Form.
(m) Force Majeure has the meaning set forth in Section 13.11.
(n) Folks Data means any information and data of Folks provided to the Client pursuant to this Agreement, including, without limitation, derivative data generated through the use of the Service Software.
(o) Folks Materials means the Service Software, specifications, documentation and Folks systems and any and all other information, data, documents, materials, works and other content, devices, methods, processes, hardware, software and other technologies and inventions that are provided or used by Folks or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Folks systems. For the avoidance of doubt, Folks Materials do not include Client Data.
(p) Hosted Services has the meaning set forth in Section 2.1.
(q) Indemnitee has the meaning set forth in Section 11.3.
(r) Indemnitor has the meaning set forth in Section 11.3.
(s) Initial Term has the meaning set forth in Section 9.1.
(t) Intellectual Property Rights means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trade-mark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(u) Law means any statute, ordinance, regulation, rule, code, constitution, treaty, concept of common law, Governmental Order or other requirement or rule of law of any Governmental Authority.
(v) Losses means all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs or expenses of whatever kind, including reasonable legal fees, disbursements and charges, and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(w) Order Form means any order form between Folks and the Client that references the Agreement pursuant to which the Client orders Services, which Order Form shall be incorporated into and form part of the Agreement.
(x) Party (and the term Parties) means each of Folks and the Client or them collectively.
(y) Person means an individual, corporation, partnership, unlimited liability company, Governmental Authority, unincorporated organization, trust, association or any other entity.
(z) Personal Information means any information that, individually or in combination, does or can, directly or indirectly, identify a specific individual or device or by or from which a specific individual or device may be identified, contacted or located, including but not limited to the name, surname, age, address and health information of a specific individual. Personal Information includes information identified as such by relevant Canadian Laws, including the Personal Information Protection and Electronic Documents Act.
(bb) Receiving Party has the meaning set forth in Section 8.1.
(cc) Renewal Term has the meaning set forth in Section 9.2.
(dd) Services has the meaning set forth in Section 2.1.
(ee) Service Software means Folks’ software and any third-party or other software that Folks provides remote access to in respect thereof, and use of, as part of the Hosted Services, as detailed in the Order Form, and all new versions, updates, revisions, improvements and modifications of the foregoing. For greater certainty, Service Software does not include any functionality that is not described in the Order Form, which, if offered by Folks may be the subject of a separate agreement or an amendment to this Agreement.
(ff) Subcontractor has the meaning set forth in Section 2.4.
(gg) Systems means information technology infrastructure, including computers, software, hardware, databases, electronic systems (including database management systems), networks and internet connectivity, whether operated directly or through the use of third-party services.
Article 2 - Services
2.1 Software Services
(a) Grant of Access and Use: Subject to and conditional on compliance with the terms and conditions of this Agreement by the Client and its Authorized Users, during the Initial Term or any Renewal Term, as applicable, Folks shall use commercially reasonable efforts to provide the Client and its Authorized Users the Services described in this Agreement and the Order Form (Services) in accordance with the terms and conditions of this Agreement, including to host, manage, operate and maintain the Service Software for remote electronic access and use by the Client and its Authorized Users (collectively, the Hosted Services).
(b) Updates to Service Software:
i. Folks reserves the right to make, at no additional fee to the Client, updates and changes to the Service Software (including maintenance releases, bug fixes, corrections, and minor modifications) that Folks makes generally available to its other customers (Updates); provided that Folks will not make any changes or Updates that materially decrease the core functionality of the Service Software that impact the Client during the Term of this Agreement.
ii. Folks may periodically launch new or significantly different add-on Hosted Services, enhancements, or services that are outside the scope of this Agreement and which have additional fees. Such add-on Hosted Services, enhancements or services will not be considered an Update. The Client is under no obligation to use or pay for such new add-on Hosted Services, enhancements, or services, and the use or deployment of those services will be subject to an Order Form between the Parties, if applicable.
2.2 Service and System Control
Except as otherwise expressly provided in this Agreement:
(a) Folks has and will retain sole control over the hosting, operation, provision, management and maintenance of the Services and Folks Materials.
(b) The Client has and will retain sole control over the operation, management and maintenance of, and all access to and use of, the Clients’ Systems, and sole responsibility for all access to, and use of, the Hosted Services and Folks Materials by any Person by or through the Clients’ Systems or any other means controlled by the Client.
2.3 Entry into Force
This Agreement and all rights and obligations it contains shall come into effect as of the date of the signature by the Parties of the Order Form (the Effective Date).
Folks may, from time to time, in its discretion, engage third parties to perform the Services (each, a Subcontractor).
2.5 Suspension or Termination of Services
If Folks can demonstrate that :
(i) The Client has failed to comply with, any material term of this Agreement or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement;
(ii) The Client is, has been or is likely to be involved in any fraudulent, misleading or unlawful activities relating to or in connection with the Services; or
(iii) The Client has not paid the Fees due in accordance with Article 5.
then Folks, may, directly or indirectly, by use of any lawful means and in a temporary or permanent manner as applicable, suspend or deny access to or use of all or any part of the Service or Folks Materials by the Client or any other Person, without incurring any resulting obligation or liability and in addition to its right to terminate the Agreement as provided in Section 9.3. This Section 2.5 does not limit any of Folks’ other rights or remedies, whether at Law or as applicable in equity or under this Agreement.
Article 4 - Privacy
4.1 Folks Obligation
4.2 Data Breach Procedure
Folks will implement and maintain at all times a data breach plan in accordance with applicable Laws and shall implement the procedures required under such data breach plan on the occurrence of a data breach.
4.3 Client Control and Responsibility
Subject to Folks’ compliance with the obligations set out in Sections 4.1 and 4.2, and to the extent any breach does not primarily relate to Folks’ violation thereof, the Client has and will retain responsibility for:
(a) all the Clients’ Data and its content and use;
(b) all information, instructions and materials provided by or on behalf of the Client or any Authorized User in connection with the Services;
(c) Client Systems;
(d) the security and use of Access Credentials of the Client and its Authorized Users; and
(e) all access to and use of the Hosted Services and Folks Materials directly or indirectly by or through the Client Systems or its Authorized Users’ Access Credentials, with or without Clients’ knowledge or consent, including all results obtained from, and all conclusions, decisions and actions based on, such access or use.
4.4 Client’s Obligations
The Client shall :
(a) inform its Employees as to the scope of Personal Information regarding them that will be accessible through the Services Software and to which the Client, as well as its Authorized Persons, including Authorized Users, may have access, and obtain their consent, in accordance with applicable Laws, to the Client’s collection, access, use and processing of their Personal Information through the Services Software;
(b) ensure that only its Authorized Persons with a genuine need to access an Employee’s Personal Information are able to do so, and that they ensure the confidentiality and security of the Personal Information to which they may have access. For greater clarity, the Client acknowledges that in no event will Folks be liable for access to Employee Personal Information by an Authorized User resulting from any situation other than Folks’ negligence or gross negligence.
4.5 Access and Security
The Client shall employ all electronic, technological, organizational, contractual, physical, administrative, technical and other measures, controls, screening and security procedures and other safeguards necessary to:
(a) securely administer the distribution and use of any and all Access Credentials and protect against any unauthorized access to or use of the Hosted Services; and
(b) control the content and use of Client Data, including the uploading or other provision of Client Data for processing by the Hosted Services.
Article 5 - Fees and payment
5.1 Service Fees
The Client will pay Folks the Fees in accordance with the Order Form. Any other services that may be provided by Folks to the Client that are not within the scope of the Services detailed in such Order Form shall be subject to a separately signed Order Form entered into by Folks and the Client from time to time.
Folks will issue written invoices to the Client for the Fees due in accordance with the applicable Order Form(s). Fees shall be invoiced monthly or at such other time specified in the applicable Order Form. The Client shall pay all Fees following receipt of the invoice detailing such Fees. The Client shall make all payments hereunder in Canadian dollars by wire transfer, credit card or electronic funds transfer.
All Fees and other amounts payable by the Client under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, the Client is responsible for all goods and services, harmonized sales, sales, service, use and excise taxes, and any other similar taxes, duties and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by the Client hereunder, other than any taxes imposed on Folks’ income.
5.4 Fee increases
Unless a written agreement to the contrary has been concluded between the Parties, for each Renewal Term, Folks reserves the right to increase Fees payable under this Agreement at its discretion. Folks shall provide the Client with a written notice of the increase in Fees at least 30 days before the expiry of the Initial Term or then current Renewal Term, as applicable, and if this Agreement is renewed in accordance with Section 9.2, the Fees will be deemed amended accordingly.
Folks does not provide refunds of payments made in connection with any Services performed in conformity with the specifications set out and the warranties provided herein, unless Folks shall be in material breach of any of the terms and specifications thereof.
Article 6 - Intellectual property
6.1 Folks Intellectual Property
All right, title and interest in the Services and Folks Materials, including all Intellectual Property Rights embodied therein, belong solely and exclusively to Folks or its licensors. Modifications to the Services and Folks Materials, including all Intellectual Property Rights embodied therein, created and provided by Folks pursuant to this Agreement, whether alone or with any contribution from the Client or its Authorized Persons, will be owned exclusively by Folks. To the extent the Client or its Authorized Persons may own any right or interest in such modifications by operation of Law, the Client hereby irrevocably assigns any and all such right, title and interest to Folks, and will be responsible for obtaining such assignments from its Authorized Persons, as applicable. The Client agrees to execute all documents necessary for Folks to perfect its ownership of such modifications and all Intellectual Property Rights embodied therein. The Client will maintain and enforce agreements and policies with its Authorized Persons in order to give effect to the provisions of this Section 6.1.
Without limiting the generality of the foregoing, and subject to the payment of the Fees, the Client and its Authorized Users are permitted to access and use the Service Software in accordance with the terms of the Agreement, but this Agreement is not otherwise an agreement for the sale or license of any software. No rights or licenses are granted except as expressly set forth in this Agreement. As between Folks and the Client, Folks owns and retains all right, title and interest in and to: (i) the Service Software; (ii) any and all improvements, derivatives, and modifications to the Service Software; and (ii) any and all feedback regarding the Service Software provided by the Client or its Users to Folks, including all Intellectual Property Rights therein. All rights not expressly granted by Folks in this Agreement are reserved.
6.2 Client Intellectual Property
All right, title and interest in the Client Data, including all Intellectual Property Rights embodied therein, shall belong solely and exclusively to Client or its licensors. The Client hereby grants to Folks a non-exclusive license to use and reproduce the Client Data as needed for the purposes of providing the Services to the Client.
Article 7 - Data
As between the Parties, the Client shall own all rights, title, and interest in and to all of the Client Data, with the exception of Personal Information, which remains the property of the Employee to whom it refers. Should Folks determine that any Client Data (a) is in breach of this Agreement, (b) violates Applicable Law or (c) the access to or use of which in connection with this Agreement would reasonably be expected to constitute grounds for Folks’ exposure to civil or criminal liability, then Folks has the right, but not the obligation, to remove (or request that the Client remove) such Client Data from the Services. The Client hereby grants Folks a non-exclusive, non-sublicensable, non-transferable, limited, revocable and royalty-free right to use, host, copy, store, transmit, modify, and display the Client Data solely for the purposes of providing the Services hereunder.
7.2 Aggregate Data
(a) The Client hereby grants to Folks, in perpetuity a royalty-free, world-wide right and license in and to the Aggregate Data for all purposes in connection with Folks’ business, subject to the terms and conditions of this Agreement. For clarity, Folks shall have the right to process, reformat, manipulate, adopt, create derivate works, copy, display, import, export, store and otherwise use, in whole or in part, the Aggregate Data, in any way Folks desires, subject to applicable laws and the terms and conditions set forth herein, it being understood, however, that Aggregate Data will remain anonymized at all times in accordance with legal requirements and best practices in force at the time.
(b) For greater certainty, Folks agrees that it shall not be entitled to any data, and the Client shall not be obligated to provide to Folks any data relating to or arising from any of its own internal activities conducted by the Client without the use or involvement of the Service Software and the Hosted Services.
7.3 Retention and Access to Client Data
(a) Client Data shall be retained by Folks for the term of the Agreement, and for a period of thirty (30) days following termination thereof, during which period the Client shall be responsible for taking steps to recover the Client Data in accordance with Section 9.4(a). Following the expiration of this thirty (30) day period, Folks may erase the Client Data without further notice.
(b) In order to provide the Services to the Client and to enable the Client to use the Services Software, Folks shall have access to the Client Data. Unless compelled by applicable Laws to do so, Folks shall only access Client Data in order to provide the Services to Client, or otherwise at Client’s request.
(c) Any Employee who wishes to access Clients Data regarding them, including their Personal Information, shall contact the Client.
7.4 Folks Data
Subject to the limitations in Section 10.4, Folks hereby grants to the Client and its Affiliates, during the Initial Term and any Renewal Period, as applicable, a non-exclusive, fully paid-up, worldwide right and license, under Folks’ rights and interests in and to Folks Data, including without limitation, all Intellectual Property Rights Folks may have in Folks Data, to process, reformat, manipulate, adopt, create derivate works, copy, display, import, export, store and otherwise use Folks Data for (A) its own internal business purposes, and (B) its own non-commercial maintenance purposes. FOR GREATER CERTAINTY, FOLKS DOES NOT WARRANT THE ACCURACY, COMPLETENESS, OR USEFULNESS OF ANY FOLKS DATA AS PROCESSED, REFORMATTED, MANIPULATED, ADOPTED, DERIVED, COPIED, DISPLAYED, IMPORTED, EXPORTED OR STORED BY THE CLIENT. ANY RELIANCE PLACED BY THE CLIENT ON SUCH INFORMATION IS STRICTLY AT YOUR OWN RISK. FOLKS DISCLAIMS ALL LIABILITY AND RESPONSIBILITY ARISING FROM ANY RELIANCE PLACED ON SUCH MATERIALS BY THE CLIENT OR ANY OTHER USER THEREOF, OR BY ANYONE WHO MAY BE INFORMED OF ANY OF ITS CONTENTS.
Article 8 - Confidentiality
8.1 Disclosure of Confidential Information
In connection with this Agreement each Party (as the Disclosing Party) may disclose or make available Confidential Information to the other Party (as the Receiving Party). Subject to Section 8.2, Confidential Information means information in any form or medium (whether oral, written, electronic or other) that the Disclosing Party considers confidential or proprietary, including, information consisting of, or relating to, the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, customers and pricing and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated or otherwise identified as “confidential”. Without limiting the foregoing, all Folks Material and Folks Data are the Confidential Information of Folks and the financial terms and existence of this Agreement are the Confidential Information of each of the Parties.
Confidential Information does not include information that the Receiving Party can demonstrate by written or other documentary records:
(a) was rightfully known to the Receiving Party without restriction on use or disclosure before such information’s being disclosed or made available to the Receiving Party in connection with this Agreement;
(b) was or becomes generally known by the public other than by non-compliance with this Agreement by the Receiving Party or any of its Authorized Persons;
(c) was or is received by the Receiving Party on a non-confidential basis from a third party that, to the Receiving Party’s knowledge and following reasonable verifications on its part, was not, at the time of such receipt, or is not under any obligation to maintain its confidentiality; or
(d) the Receiving Party can demonstrate that they have been or are independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3 Protection of Confidential Information
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party shall:
(a) not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
(b) except as may be permitted by and subject to its compliance with Section 8.4, not disclose or permit access to Confidential Information other than to its Authorized Persons who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by written confidentiality and restricted use obligations at least as restrictive as the terms set forth in this Section 8.3;
(c) safeguard the Confidential Information from unauthorized use, access or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care; and
(d) ensure its Authorized Persons compliance with such requirements.
8.4 Compelled Disclosures
(a) If the Receiving Party or any of its Authorized Persons is compelled by applicable Law to disclose any Confidential Information, then, to the extent permitted by applicable Law, the Receiving Party shall:
i. Without delay, and before any disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under Section 8.3; and
ii. provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s cost and expense, in opposing such disclosure or seeking an injunction, a protective order or other limitations on disclosure.
(b) If the Disclosing Party waives compliance or, after providing the notice and assistance required under this Section 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that, on the advice of the Receiving Party’s legal counsel, the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.
8.5 Client Data Protection
(a) Without limiting the generality of the foregoing, Folks undertakes not to disclose, share, make accessible by any means any of the Client Data which otherwise constitutes Confidential Information to its other clients, partners, shareholders and to any third party. Folks recognizes that the Client Data constitutes business sensitive information and sharing such Confidential Information with others could severely and irremediably impact Client’s business.
(b) Notwithstanding the foregoing, upon receipt of a written request to that effect from the Client, Folks may integrate the Service Software with other software, technology or other digital platforms used by the Client and thus share Client Data with such external partners of the Client, which sharing shall not be deemed a breach by Folks of its confidentiality undertakings set forth in Article 8. In no event shall any disclosure of the Client Data by Folks pursuant to this Section 8.5 (b) trigger Folks’ liability for any damages suffered by the Client.
Article 9 - Term and Termination
9.1 Initial Term
The initial term of this Agreement shall be a period of one (1) month following the Effective Date (Initial Term).
9.2 Renewal Term
Unless a written notice of non-renewal is given by one Party to the other at least 30 days prior to the date of expiry of the then-current term, the term of the Agreement shall be automatically renewed for successive terms of one (1) month (Renewal Term, each a Term) upon the same terms and conditions, without discounts, as contained herein except for the Fees which may increase as provided in Section 5.4 of this Agreement.
In addition to any other express termination right set forth elsewhere in this Agreement:
(a) Folks may terminate this Agreement, effective on written notice to the Client, if the Client:
i. fails to pay any amount when due hereunder, and such failure continues more than 90 days after Folks’ delivery of written notice thereof; or
ii. breaches any of its obligations under Section 3.2 or Article 8.
(b) either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach:
(i) is incapable of cure; or
(ii) being capable of cure, remains uncured 30 days after the non-breaching Party provides the breaching Party with written notice of such breach; and
(c) either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party:
(i) fails to pay its debts generally as they become due or otherwise acknowledges its insolvency;
(ii) ceases to carry on business in the ordinary course;
(iii) makes a general assignment for the benefit of its creditors;
(iv) has issued against it a bankruptcy order or otherwise becomes subject to any involuntary proceeding under any domestic or foreign bankruptcy law;
(v) commences or institutes any application, proceeding or other action under any Law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors, compromise of debts or similar Laws, seeking:
i. to have an order for relief entered with respect to it;
ii. to adjudicate it as bankrupt or insolvent;
iii. reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, compromise, arrangement, stay of proceedings of creditors generally, or other relief with respect to it or its assets or debts; or
iv. appointment of a receiver, interim receiver, receiver and manager, trustee, custodian, conservator or other similar official for it or for all or any substantial part of its assets.
9.4 Effect of Expiration or Termination
Upon termination or expiration of this Agreement, except as otherwise expressly provided below or elsewhere in this Agreement:
(a) all rights, licenses, consents and authorizations granted by either Party to the other hereunder will immediately terminate, subject to the Client being granted a limited right of thirty (30) days to diligently proceed to the retrieval or migration of any Client Data Folks’ possession or at Client’s written request destroy, all documents and tangible materials containing, reflecting, incorporating or based on Client Data or Client’s Confidential Information;
(b) Subject to Section 9.4(a), Folks shall cease all use of any remaining non-retrieved Client Data or Client’s Confidential Information and at its sole discretion, may destroy permanently such Client Data and Client’s Confidential Information from Folks Systems, subject to the residual rights conferred to Folks with respect to the Aggregate Data under this Agreement;
(c) Subject to Section 9.4(a) (and only to the extent necessary for the purposes set out therein and no other purpose), the Client shall immediately cease all use of any Services Folks Materials; and
(i) promptly return to Folks, or at Folks’ written request destroy all document and tangible materials containing, reflecting, incorporating or based on Folks’ Confidential Information; and
(ii) permanently erase all Folks Materials and Folks’ Confidential Information from all computer systems that the Client directly or indirectly controls.
(d) notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control:
(i) the Receiving Party may retain the Disclosing Party’s Confidential Information in its then current state and solely to the extent and for so long as required by applicable Law;
(ii) Folks may retain Client Data in its then current state and solely to the extent and for so long as required by applicable Law;
(iii) The Client may retain Folks Materials in its then current state and solely to the extent and for so long as required by applicable Law;
(iv) Folks may also retain Client Data in its backups, archives and disaster recovery systems until such Client Data is deleted in the ordinary course, which shall in no event be longer than 3 months from the date of expiration of termination; and
(v) all information and materials described in this Section 9.4(d) will remain subject to all confidentiality, security and other applicable requirements of this Agreement;
(e) Folks may disable all Client and Authorized User access to the Hosted Services and Folks Materials; and
(f) if Folks terminates this Agreement under Section 9.3, all accrued and unpaid Fees as of the date of such notice of will become immediately due and payable, and the Client shall pay such Fees.
Article 10 - Representations and warranties
10.1 Mutual Representations and Warranties
Each Party represents and warrants to the other that:
(a) it has all required power and capacity to enter into this Agreement, to grant the rights provided for under this Agreement and to perform its obligations under this Agreement;
(b) when executed and delivered by each of the Parties, this Agreement will constitute the legal, valid and binding obligation of such Party, enforceable against such party in accordance with its terms.
10.2 Additional Folks’ Representations and Warranties
Folks represents and warrants that it will perform the Services using personnel of required skill, experience and qualification and in a professional and workmanlike manner in accordance with the commercially reasonable industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement.
10.3 Additional Client Representations and Warranties
The Client represents and warrants that the Client Data provided or otherwise uploaded, downloaded, obtained or stored by the Client in connection with the Services, including any Personal Information, does not and will not infringe the Intellectual Property Rights of any third party or violate any applicable Laws, including data privacy Laws and/or Personal Information protection Laws.
10.4 Disclaimer of Conditions and Warranties
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN THIS AGREEMENT, ALL SERVICES AND FOLKS MATERIALS ARE PROVIDED “AS IS” AND FOLKS HEREBY DISCLAIMS ALL CONDITIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE UNDER THIS AGREEMENT, AND FOLKS SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, FOLKS MAKES NO CONDITION OR WARRANTY OF ANY KIND THAT THE SERVICES OR FOLKS MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL (i) MEET THE CLIENT’S OR ANY OTHER PERSON’S REQUIREMENTS BEYOND THE COMMERCIALLY REASONABLY CONFORMITY WITH THE SPECIFICATIONS SET OUT HEREIN AND WHICH CANNOT BE REASONABLY BE INFERRED THEREFROM; (ii) OPERATE WITHOUT INTERRUPTION; (iii) ACHIEVE ANY INTENDED RESULT; (iv) BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM OR OTHER SERVICES EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THE SPECIFICATIONS; OR (v) ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY MATERIALS IS STRICTLY BETWEEN THE CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY MATERIALS.
Article 11 - Indemnification
11.1 Indemnity by Folks
Folks shall indemnify, defend and hold harmless Client from and against any and all Losses incurred by the Client arising out of or relating to any Action by a third party (other than an Affiliate of the Client) that Client’s use of the Services (excluding Client and third party materials) in compliance with this Agreement infringes an Intellectual Property Right protected in Canada. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any:
(a) access to or use of the Services or Folks Materials in combination with any hardware, system, software, network or other materials or service not provided or authorized in writing by Folks;
(b) modification of the Services of Folks Materials other than: (i) by or on behalf of Folks, or (ii) with Folks’ written approval in accordance with Folks’ written specification;
(c) failure to timely implement any modifications, upgrades, replacements, or enhancements made available to the Client by or on behalf of Folks;
(d) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(e) negligence or more culpable act or omission (including recklessness or willful misconduct) by the Client or any third party on behalf of the Client in connection with this Agreement.
In the defense or settlement of any Infringement Claim that alleges that the Service Software or Hosted Services infringes or misappropriates third-party Intellectual Property Rights, Folks may procure the right for the Client to continue using the Service Software or Hosted Services, replace or modify the Service Software or Hosted Services (so long as such modified Service Software or Hosted Services is substantially equivalent in functionality and performance), so that they become non-infringing or, if such remedies are not reasonably available, terminate this Agreement on two (2) business days’ notice to the Client and refund the Client (without an additional liability or obligation to the Client) a prorated amount equal to the prepaid but unused Fees for the unexpired portion of the Term. This Section states the Client’s sole and exclusive rights and remedies, and Folks’ (including its Affiliates, and their officers’, directors’ employees’, agents’, and sub-contractors’) entire obligations and liability for infringement of a third party’s Intellectual Property Right.
11.2 Indemnity by the Client
The Client shall indemnify, defend and hold harmless Folks and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors and permitted assigns (each, a Folks Indemnitee) from and against any and all Losses by such Folks Indemnitee incurred in connection with any Action by a third party (other than an Affiliate of a Folks Indemnitee) to the extent such Losses arise of or relate to any:
(a) use of Client Data, including any processing of Client Data by or on behalf of Folks in accordance with this Agreement;
(b) use of any other materials or information (including any documents, data, specifications, software, content or technology) provided by or on behalf of the Client, including Client’s compliance with any specifications or directions provided by or on behalf of the Client to the extent prepared without any contribution by Folks;
(c) allegation of facts that, if true, would constitute Client’s breach of any of its representations, warranties, covenants or obligations under this Agreement; or
(d) negligence or more culpable act or omission (including recklessness or willful misconduct) by the Client or any third party on behalf of the Client in connection with this Agreement.
11.3 Indemnification Procedure
Each Party shall within a reasonable delay notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified under this Article 11. The Party seeking indemnification (Indemnitee) shall cooperate with the other party (Indemnitor) at the Indemnitor’s sole cost and expense. The Indemnitor may immediately take control of the defense and investigation of such Action, at his cost and expense. The Indemnitee’s failure to perform any obligation under this Section 11.3 will not relieve the Indemnitor of its obligations under this Article 11 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
Article 12 - Limitation of liability
12.1 Exclusion of Damages
SUBJECT TO APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (i) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE OR PROFIT OR DIMINUTION IN VALUE; (ii) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES; (iii) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA; (iv) BREACH OF DATA OR SYSTEM SECURITY; OR (v) CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, AGGRAVATED, PUNITIVE OR EXEMPLARY DAMAGES, REGARDLESS OF WHETHER FOLKS WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
FURTHERMORE AND WITHOUT LIMITING THE GENERALITY OF THE FOREGOING AND ANYTHING TO THE CONTRARY IN THIS AGREEMENT, FOLKS SHALL NOT BE LIABLE TO THE CLIENT OR ANY ITS SUBSIDIARIES, AFFILIATES, AGENTS, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND THE CLIENT’S CUSTOMERS FOR ANY LOSS, COST, EXPENSE, DAMAGE, CLAIM, DEMAND, OR LIABILITY, INCLUDING ATTORNEY AND PROFESSIONAL FEES AND COSTS, AND THE COST OF SETTLEMENT, COMPROMISE, JUDGMENT, OR VERDICT INCURRED BY OR DEMANDED OF SUCH PARTIES WITH RESPECT TO ANY CLAIM PERTAINING TO THE USE TO FOLKS DATA BEYOND THE SCOPE OF ALLOWABLE USES UNDER THIS AGREEMENT.
12.2 Cap on Monetary Liability
SUBJECT TO SECTION 12.1, THE LIABILITY OF EITHER PARTY FOR ANY CLAIM ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT, WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND, REGARDLESS OF THE FORM OF ACTION OR THEORY OF LIABILITY (INCLUDING FOR BREACH OF CONTRACT, TORT, NEGLIGENCE, BY STATUTE OR OTHERWISE) SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY SUCH PARTY AND SHALL NOT EXCEED THE FEES PAID BY THE CLIENT HEREUNDER DURING THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE DATE OF THE CLAIM. BOTH PARTIES AGREE THAT THE LIMITATIONS AND EXCLUSIONS CONTAINED IN THIS ARTICLE 12 ARE REASONABLE BASED UPON THE COMMERCIAL CIRCUMSTANCES, AND EACH PARTY WOULD NOT HAVE ENTERED INTO THIS AGREEMENT BUT FOR THE LIMITATIONS CONTAINED HEREIN.
Article 13 - Miscalleaneous
13.1 Order Form
The Order Form provided to the Client by Folks forms an integral part of this Agreement and is incorporated herein by reference, such that a breach by either Party of any of its obligations under the Order Form shall be deemed a breach of this Agreement.
13.2 Independent Contractor
Folks enters into this Agreement as an independent contractor. Nothing in this Agreement will be construed as creating the relationship of joint venturers, partners, employer and employee, franchisor and franchisee, master and servant, or principal and agent.
No Party may assign this Agreement without obtaining the prior written consent of the other Party, which consent will not be unreasonably withheld, except that Folks may assign this Agreement without the consent of the Client to an Affiliate or to a third party acquiring all or substantially all its assets.
13.4 Governing Law
This Agreement will be governed and construed in accordance with the Laws of the Province of Quebec excluding choice of law provisions and all claims arising hereunder shall be brought exclusively in the courts located in the City of Quebec, Province of Quebec.
13.5 Entire Agreement
This Agreement, including the Order Form, constitutes the entire agreement between the Parties with respect to the subject matter hereof, and supersedes and replaces all preceding and contemporaneous understandings or agreements, written or oral, regarding such subject matter. No amendment or modification of this Agreement will be binding unless in writing and signed by a duly authorized representative of both Parties.
All notices, requests, consents, claims, demands, waivers and other communications under this Agreement shall be in writing and shall be deemed to have been given (a) when delivered by hand (with written confirmation of receipt); (b) when received by the addressee if sent by a nationally recognized overnight courier (receipt requested); (c) on the date sent by facsimile or email, in either case, with confirmation of transmission if sent during normal business hours of the recipient, and on the next Business Day if sent after normal business hours of the recipient or (d) on the third day after the date mailed, by certified or registered mail, return receipt requested, postage prepaid. Such communications must be sent to the respective Parties at the addresses indicated in the Order Form.
The Client and Folks agree that either Party may use the other’s name and logo in presentations, marketing materials, press materials, customer lists, financial reports and website listings of customers.
All headings to Articles and Sections are provided for convenience only, and shall not be used for purposes of construction of this Agreement.
Waiver by a Party of any breach by the other Party shall not be deemed a waiver of any other of subsequent breach.
If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
13.11 Force Majeure
No Party shall be liable for any delay or failure to perform its obligations pursuant to this Agreement if such delay is caused by any act of God, any governmental authority, war, civil disturbance, third party non-performance caused by an act of force majeure as defined in this clause, or any other cause beyond its reasonable control which prevents or hinders in any material way the carrying out by either Party of its obligations under this Agreement, including without limitation failures in telecommunications equipment or lines, (Force Majeure), provided that the Force Majeure exception to performance shall not apply to a payment obligation, unless the Client is unable to fully access the Services for a period lasting longer than 3 months, in which case, all Fees paid for such period shall be reimbursed by Folks until the Services resume in full. If a delay or failure of a Party to perform its obligations is caused by Force Majeure, the performance of the parties’ obligations will be suspended for the period during which the Force Majeure continues.
13.12 Binding Effect
Subject to the limitations herein before expressed, this Agreement will inure to the benefit of and shall be binding upon the Parties, their permitted successors and assigns.
The Parties have expressly agreed that this Agreement, all ancillary document and all notices hereunder, when applicable, be drafted in English only after consideration of the Charter of the French Language. Les Parties aux présentes ont expressément convenu que ce contrat, tous documents accessoires y afférant ainsi que tout avis, le cas échéant, soient rédigés en anglais seulement après avoir pris en compte la Charte de la langue française.