- Article 1 - Definitions
- Article 2 - Services
- Article 3 - Authorizations and Restrictions
- Article 4 - Privacy
- Article 5 - Intellectual Property
- Article 6 - Data
- Article 7 - Term and Suspension of the Access
- Article 8 - Exclusions
- Article 9 - Indemnification and Limitation of Liability
- Article 10 - Miscellaneous
Article 1 - Definitions
(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) 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.
(c) Aggregate Data means Client Data in anonymized and aggregate form.
(d) Authorized Person means collectively the directors, officers, employees, agents, contractors, mandataries and beneficiaries of a Party.
(f) 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.
(g) Employee means an employee or external consultant of the Client whose human relations file is managed, in whole or in part, through the Services.
(h) Folks Data means any information and data of Folks provided to the Client pursuant to the Agreement, including, without limitation, derivative data generated through the use of the Service Software.
(i) 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.
(j) Hosted Services has the meaning set forth in Section 2.1.
(k) 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.
(l) 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.
(m) 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.
(n) Party (and the term Parties) means each of Folks, the Client and the Authorized User, or them collectively.
(o) Person means an individual, corporation, partnership, unlimited liability company, governmental authority, unincorporated organization, trust, association or any other entity.
(p) 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.
(r) Services has the meaning set forth in Section 2.1.
(t) Subcontractor has the meaning set forth in Section 2.3.
(u) 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
(b) Updates to Service Software: Folks reserves the right to make, in accordance with the Agreement, 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 and their Authorized Users (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 the Agreement.
2.2 Service and System Control
(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.
Folks may, from time to time, at its discretion, engage third parties to perform the Services (each, a Subcontractor).
2.4 Suspension or Termination of Services
If Folks can demonstrate that :
(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 the terms and conditions of the 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 - Intellectual Property
5.1 Folks Intellectual Property
5.2 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 6 - 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.
6.2 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.
6.3 Retention of 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 the terms and conditions of the Agreement.
(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 Client Data regarding them, including their Personal Information, shall contact the Client.
6.4 Folks Data
Subject to the limitations in Section 8.1, Folks hereby grants to the Client and its Affiliates, during the term of the Agreement, 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 7 - Term and Suspension of the Access
7.1 Initial Term
The term of an Authorized User’s access to the Services is directly related to the term of the relationship between Folks and the Client. When the business relationship between Folks and the Client terminates, in accordance with the Agreement, any Authorized User of the Client will automatically lose access to the Services.
Article 8 - Exclusions
8.1 Disclaimer of Conditions and Warranties
Article 9 - Indemnification and Limitation of Liability
9.1 Indemnity from Folks
Folks shall indemnify, defend and hold harmless the Client in accordance with the terms and conditions of the Agreement.
9.2 Exclusion of Damages
9.3 Cap on Monetary Liability
Article 10 - Miscellaneous
10.1 Independent Contractor
10.3 Governing Law
Waiver by a Party of any breach by the other Party shall not be deemed a waiver of any other of subsequent breach.
The Parties have expressly agreed that this Agreement, all ancillary documents 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.