COMMERCIAL PROVISIONS
Table of Contents
- ARTICLE 1 - DEFINITIONS & INTERPRETATION
- ARTICLE 2 - ONBOARDING
- ARTICLE 3 - CONEXIOM SERVICES
- ARTICLE 4 - CONEXIOM SERVICE LEVEL TERMS
- ARTICLE 5 - FEES, INVOICING & PAYMENT
- ARTICLE 6 - SECURITY
- ARTICLE 7 - SUBSCRIBER DATA
- ARTICLE 8 - WARRANTY
- ARTICLE 9 - LIMITATIONS OF LIABILITY
- ARTICLE 10 - INTELLECTUAL PROPERTY
- ARTICLE 11 - USE OF ARTIFICIAL INTELLIGENCE (AI) AND MACHINE LEARNING (MI)
- ARTICLE 12 - INTELLECTUAL PROPERTY INDEMNIFICATION
- ARTICLE 13 - INDEMNIFICATION BY SUBSCRIBER
- ARTICLE 14 - CONFIDENTIALITY
- ARTICLE 15 - DISPUTES
- ARTICLE 16 - FORCE MAJEURE
- ARTICLE 17 - TERM, RENEWAL & TERMINATION
- ARTICLE 18 - GENERAL
Article 1 - DEFINITIONS & INTERPRETATION
1.1 Definitions.
(a) In these Commercial Provisions:
(b) “Affiliate” means, with respect to either Party, any corporation, partnership or other entity or organization (each a “Person”) that now or hereafter directly or indirectly through one or more intermediaries, controls, or is controlled by or is under common control with the Party in question. The term “control” including the terms “controlling”, “controlled by”, and “under common control with” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of the Person in question, whether through the ownership of voting shares, by contract or otherwise;
(c) “Agreement” means the Quotation, these Commercial Provisions, and all written amendments signed by the Parties;
(d) “Claims” means any and all losses, liabilities, suits, actions, causes of actions, judicial or administrative proceedings, claims, demands, damages, penalties, fines, costs and expenses of whatsoever kind or character (including but not limited to all costs and fees for investigation and defense);
(e) “CONEXIOM” means ECMARKET’s electronic document exchange eBusiness service which enables conversion and delivery of inbound documents from senders to receivers;
(f) “CONEXIOM Fees” means the fees set out in the Quotation for the CONEXIOM Service;
(g) “CONEXIOM Service” means the CONEXIOM Service described in 3.1 [CONEXIOM Services];
(h) “CONEXIOM Subscriber Portal” means the website ECMARKET makes available to the SUBSCRIBER to enroll and manage Trading Partners and Transactions;
(i) “ECMARKET” means the entity identified as ECMARKET on the Quote;
(j) “ECMARKET IP” includes the Intellectual Property of ECMARKET, and its licensors, in and to the CONEXIOM Service (including the documentation, technology components, object and source code, and its artificial intelligence and machine learning), and any modifications to, improvements to, and derivative works of, the foregoing
(k) “Effective Date” means the effective date specified on the Quote;
(l) “Initial Subscription Term” is defined in Section 16 [Initial Subscription Term];
(m) “Intellectual Property” means all intellectual property rights whether or not registered, including:
(i) proprietary rights provided under patent law, copyright law, trademark law, design patent or industrial design law, semi-conductor chip or mask work law, or any other applicable statutory provision or otherwise arising at law or in equity anywhere in the world, including, without limitation, trade secret law, that may provide a right in works, hardware, software, source code, object code, marks, ideas, formulae, algorithms, concepts, methodologies, techniques, inventions, or know-how, or the expression or use of them;
(ii) applications, registrations, licenses, sublicences, agreements, or any other evidence of a right in any of the items specified in (i); and
(iii) past, present, and future Claims, rights of recovery, royalties or other relief relating, referring, or pertaining to any of the items specified in (i) and (ii);
(n) “Party” means ECMARKET or SUBSCRIBER, and “Parties” means both of them;
(o) “Permitted Affiliate” means a SUBSCRIBER Affiliate identified in Schedule 2 [SUBSCRIBER Affiliates];
(p) “Permitted Document Types” means the types of documents specified in the Quote that are enabled for use with the CONEXIOM Service;
(q) “Onboarding” means technical setup and configuration of Conexiom Service and/or expert guidance to enable customers to achieve their goals independently.
(r) “Post-Onboarding Support” is a resource available to the SUBSCRIBER to help troubleshoot, answer queries, provide guidance on how to use the software, manage exceptions and/or resolve issues that may arise related to Conexiom. This includes a team of people available during the times outlined in Section 3.4 and access to our online knowledge base to enable SUBSCRIBER to resolve issues independently.
(s) “Quotation” or “Quote” means an ECMARKET quotation for CONEXIOM Service that references these Commercial Provisions. Quotation includes all of the Schedules;
(t) “Renewal Subscription Term” is defined in 16.2 [Renewal Subscription Term];
(u) “Schedule” means a Schedule referenced in the Quotation;
(v) “Service Level Terms” mean the service level terms set out in Conexiom Service Level Terms in Section 4.1;
(w) “SUBSCRIBER” means the entity identified as SUBSCRIBER on the Quotation;
(x) “Subscriber Data” means any data, information or material that is submitted to the CONEXIOM Service by SUBSCRIBER, Permitted Affiliates and Trading Partners in the course of using the CONEXIOM Service;
(y) “Subscription Start Date” means the date specified in the Quote;
(z) “Term” means the Initial Subscription Term and the Renewal Subscription Term, if any;
(aa) “Time Zone” means the time zone specified in the Quotation, applicable to business hours;
(bb) “Trading Partner” means any supplier, customer, subsidiary or any other organization with which SUBSCRIBER or its Permitted Affiliates conduct business using the CONEXIOM Service; and
1.2 Entire Agreement.
(a) The Agreement, which is the complete and exclusive statement of the agreement between the parties for the provision of the CONEXIOM Service (including Onboarding and the Conexiom Service), supersedes and merges all prior representations, proposals, understandings and all other agreements, oral or written, express or implied, between the Parties relating to the subject matter, including any pre-printed terms which may be included on any commercial document exchanged between the Parties such as purchase orders, order acknowledgements and invoices. The Agreement comprises, in descending order of precedence:
(i) any written amendment to the Agreement signed by the Parties;
(ii) the Quotation, including:
(iii) Schedule 1 [Statement of Work];
(iv) Schedule 2 [SUBSCRIBER Affiliates]; and
(v) these Commercial Provisions,
(b) and if there is a conflict or inconsistency between the provisions of any of these documents, the provision in the higher ranked document shall be determinative to the extent of the conflict or inconsistency.
1.3 Costs, Expenses and Risk.
(a) Except as expressly stated in the Agreement, each Party is solely responsible for all cost, expense and risk incurred by it and by any of its personnel, employees and agents in connection with the performance of its obligations under this Agreement.
1.4 Reasonable Efforts.
(a) Neither Party shall be liable to make more than a reasonable commercial effort to perform its obligations.
1.5 Inclusion.
(a) Where the words “including” or “includes” appear in these Commercial Provisions, they mean including (or includes) without limitation.
1.6 Days.
(a) Unless expressly indicated otherwise, all references to a “day” or “days” in these Commercial Provisions are deemed to be references to calendar days.
ARTICLE 2 - ONBOARDING
2. Onboarding.
(a) ECMARKET shall provide the following CONEXIOM services (collectively the “Onboarding”) as outlined in Schedule 1 [Statement of Work] to SUBSCRIBER. During the Term, SUBSCRIBER shall, at all times, comply with the SUBSCRIBER Requirements set out in Schedule 1 [Statement of Work]. Depending on what products were licensed on the Quote, the Onboarding may or may not include Trading Partners that are not configured as live in production in the CONEXIOM Subscriber Portal:
(i) upon receipt of a mapping request with appropriate mapping instructions and test document sample(s), creation of a CONEXIOM map for the test document format received for the associated Trading Partner. Only one (1) CONEXIOM map shall be created for each Trading Partner entered in the CONEXIOM Subscriber Portal; and
(ii) upon successful completion of a CONEXIOM map, test documents shall be made available for retrieval by SUBSCRIBER via the CONEXIOM Subscriber Portal to be delivered to the SUBSCRIBER using the format and delivery method defined in Schedule 1 of the Quotation.
ARTICLE 3 - CONEXIOM SERVICES
3.1 CONEXIOM Service.
(a) Subject to Section 4.4(b) and Customer’s continuous compliance with Section 1 [Subscriber Requirements], starting on the Subscription Start Date, ECMARKET shall provide the CONEXIOM Service to the SUBSCRIBER on the Service Level Terms.
(b) ECMARKET shall, in accordance with the Service Level terms set out in 4.1 [CONEXIOM Service Level Terms], provide the following CONEXIOM services (collectively the “Production Services”) to SUBSCRIBER:
(i) upon receipt by CONEXIOM of an electronic document intended for SUBSCRIBER, CONEXIOM will convert and deliver the document to SUBSCRIBER in the format and delivery method defined in Schedule 1 of this Quotation.
(ii) notify SUBSCRIBER, via an e-mail alert and within the SUBSCRIBER portal, as to those documents which cannot be processed fully by CONEXIOM and delivered to SUBSCRIBER without input from SUBSCRIBER; and
3.2 Use of CONEXIOM Service.
(a) Permitted Document Types. SUBSCRIBER and the Permitted Affiliates shall use the CONEXIOM Service solely to process Permitted Document Types for the business of SUBSCRIBER and the Permitted Affiliates with Trading Partners.
(b) Use by Others. SUBSCRIBER and Permitted Affiliates shall not permit any entity other than SUBSCRIBER, the Permitted Affiliates and the Trading Partners to use the CONEXIOM Service.
(c) Right to Use. SUBSCRIBER’s, Permitted Affiliates’ and Trading Partners’ right to use the CONEXIOM Service is subject to the provisions of the Agreement.
(d) No Right to Sublicense. SUBSCRIBER shall not, and shall ensure that the Permitted Affiliates do not, sell, loan, lease, rent, license, sublicense, grant a security interest in, distribute or otherwise transfer rights to or possession of the CONEXIOM Service to any entity, or use the CONEXIOM Service in any service bureau or timesharing arrangement where SUBSCRIBER or its Permitted Affiliates provide services to a third party.
(e) Responsibility for Permitted Affiliates.
(i) SUBSCRIBER shall be responsible and liable for all acts and omissions of the Permitted Affiliates, their directors, officers, employees, consultants and other representatives, in connection with the CONEXIOM Service.
(ii) Prior to permitting the Permitted Affiliates, their directors, officers, employees, consultants and other representatives to use the CONEXIOM Service, SUBSCRIBER shall ensure that they all have agreed to provisions in favor of ECMARKET at least as restrictive as those set out in the Agreement.
3.3 Conexiom Post-Onboarding Support availability.
(a) ECMARKET shall provide Post-Onboarding Support to SUBSCRIBER and the Permitted Affiliates Monday through Friday from 8:00 am to 5:00 pm in the SUBSCRIBER Time Zone, excluding statutory holidays in Canada, in accordance with ECMARKET’s then-current support policies.
(b) ECMARKET shall provide documentation and support only in English.
ARTICLE 4 - CONEXIOM SERVICE LEVEL TERMS
4. Service Levels
4.1 The Production Services as defined in the Quote shall be provided in accordance with the following service levels and terms:
(a) Availability Service Level Commercially reasonable efforts shall be used to provide service availability 99.5% of the time, not including Excused Outages (as defined below):
(b) Credits. If a Production Service becomes unavailable for reasons other than an Excused Outage, and exceeds limits specified in Section 4.1 (a) (“Service Outage”), SUBSCRIBER shall be entitled to a service credit (“Service Credit”). The total CONEXIOM Fees paid by SUBSCRIBER in the previous twelve (12) months prior to when the Service Outage occurred shall be prorated to determine the applicable monthly amount (“Monthly Fees”). The Service Credit shall entail a rebate applied to the Monthly Fees and said rebate shall be 1.5% for each complete hour of such outage occurring within a given month, the duration of a particular outage to be determined by ECMARKET. The total Service Credit shall not exceed 50%, and a Service Credit may not be carried over from one month to the next month. Except for SUBSCRIBER’s right to terminate the Agreement for a breach by ECMARKET, the Service Credits provided under this Section 4.1 (b) shall be SUBSCRIBER’s sole and exclusive remedy, and ECMARKET’ sole and exclusive liability, for failure to meet the service levels specified in Section 4.1(a) herein or for any other failure of a Production Service;
(c) Miscellaneous Services. ECMARKET will provide Production Services monitoring 24 hours/day-by-7 days/week, full UPS back-up power supply, daily, weekly and monthly back-up procedures, and mirrored, fault tolerant drive storage will be provided.
4.2 Excused Overages. SUBSCRIBER shall not receive Service Credits under these Service Level Terms in connection with any failure or deficiency of the Production Services defined in the Production Services section of this Agreement, as caused by or associated with any of the following (“Excused Outages”):
(a) Force Majeure, as defined in the Commercial Provisions;
(b) maintenance totaling no more than 8 hours in any one month which is performed only on Saturdays during Off-Peak Business Hours;
(c) failures or deficiencies caused by SUBSCRIBER’s and/or SUBSCRIBER’s customers’ equipment or infrastructure not caused by CONEXIOM software; or
(d) outages or errors of any SUBSCRIBER’s and/or SUBSCRIBER’s customers’ systems not caused by CONEXIOM software.
ARTICLE 5 - FEES, INVOICING & PAYMENT
5. Fees.
(a) The CONEXIOM Fees are exclusive of all applicable value added, sales, use, excise or other taxes
(b) ECMARKET shall invoice SUBSCRIBER for:
(i) the fees set out on the Quotation for the Onboarding on the subscription start date, including fees for rescheduling onboarding dates and replacing Trading Partners;
(ii) the CONEXIOM Fees for the CONEXIOM Service at the Invoice Frequency specified in the on the Quotation; and
(iii) all applicable taxes. The CONEXIOM Fees are exclusive of all applicable value added, sales, use, excise or other taxes, all of which, if applicable, shall be paid by and the responsibility of SUBSCRIBER.
(c) The CONEXIOM Fees shall be based on the number of Trading Partners subscribed, the number of Transactions for use of the CONEXIOM Service, and/or a fixed Platform Fee in each twelve (12) month period of the Term based on the service offerings as described in the Quotation.
(i) A “Production Trading Partner” is defined as a Trading Partners in the CONEXIOM Subscriber Portal with any of the following statuses:
(1) Production Configuration Complete,
(2) Validation in Progress,
(3) Validation Required, or
(4) Mapping Required.
(ii) Use of the subscription pricing listed below in the Quote shall be limited to SUBSCRIBERs that are the final addressee for the documents being processed via CONEXIOM. For greater clarity, any use of CONEXIOM that has a sending company delivering documents electronically via CONEXIOM intended for multiple recipient companies, whether directly or via an intermediary company, shall not be eligible to pay according to the subscription pricing listed in Quote under Conexiom Fees. ECMARKET shall quote pricing not covered by this subscription pricing to SUBSCRIBER on a case-by-case basis.
(iii) A transaction (“Transaction”) is defined as a document processed via Conexiom. In the case where multiple documents are contained within a single message or file sent to Conexiom, each resulting delivered document shall be counted as a Transaction. Duplicate documents approved and delivered shall be counted as a Transaction. For the sake of greater clarity, any document that is delivered must be approved in Conexiom prior to delivery. Subscriber can approve documents for delivery as follows:
(1) Manually via an approve button in the Conexiom user interface. Currently, but not limited in the future to, there are the following approve buttons:
1.1 Approve
1.2 Approve with Warning
1.3 Approve with Errors
(2) Automatically via settings as configured by Subscriber.
(iv) If Subscriber does not want a document to be chargeable for processing under their Conexiom Express Subscription, Subscriber can for such document:
(1) Click the “Do not process” button in Conexiom Express, or
(2) Assign it to a Conexiom Trading Partner for processing. Fees for Trading Partner processing shall be according to Subscriber’s Subscription Agreement for Trading Partners.
(v) Note: Trading Partner processing shall be according to the specifications set forth in Subscriber’s Subscription Agreement for Trading Partners.
5.2 Subscription Overages
ECMARKET reserves the right to check the actual Transactions, Trading Partners, or any other product feature quantities used by the SUBSCRIBER against the total quantities purchased by SUBSCRIBER at any time during the Initial Subscription Term or Renewal Term. If the SUBSCRIBER’S actual usage exceeds the total quantities purchased by the SUBSCRIBER, SUBSCRIBER will be required to purchase additional capacity to account for its excess use at the same unit sales price listed in this Subscription Agreement and ECMARKET will issue an Amendment to SUBSCRIBER’s then current Agreement. Any additional product quantities purchased will be coterminous with this Subscription Agreement and have Net 30 Day payment terms.
5.3 Travel Expense Reimbursement
In the event that SUBSCRIBER requests on-site training, onboarding or other technical services from ECMARKET personnel, SUBSCRIBER will be responsible for reasonable travel, accommodations, meals, and other normally incurred travel expenses of ECMARKET personnel to provide those on-site services at a physical location specified by the SUBSCRIBER and agreed to by both Parties. Travel expenses will be invoiced to the SUBSCRIBER upon completion of the on-site services. SUBSCRIBER is required to remit payment for the invoice within 30 days of receipt.
5.4 Payment.
(a) SUBSCRIBER shall pay the fees for Onboarding to ECMARKET N/30 days of receipt of invoice.
(b) SUBSCRIBER shall pay all Subscription Fees to ECMARKET on the first day of the Term to which they apply.
5.5 Currency
(a) All references to money mean the currency specified in the Quotation, and all payments shall be made in that currency.
5.6 SUBSCRIBER Solely Responsible.
(a) SUBSCRIBER is solely responsible for the payment of all amounts payable under this Section 4 [Fees], regardless of whether it or the Permitted Affiliates or Trading Partners have used the CONEXIOM Service.
5.7 Arrears.
(a) If SUBSCRIBER fails to pay any invoice not in good faith dispute within thirty (30) days after receiving written notice from ECMARKET that the amount is thirty (30) days overdue:
(b) ECMARKET may suspend delivery of the CONEXIOM Service to the SUBSCRIBER;
(c) SUBSCRIBER shall pay ECMARKET interest on the arrears from the date payment was due until the date that payment is received in full at the rate of one percent (1.0%) per month compounded monthly (12.68% per year), or if less, the maximum rate allowed by law; and
(d) SUBSCRIBER shall pay all reasonable collection fees, including reasonable legal expenses.
5.8 Additional Fees.
(a) Any Fees not explicitly mentioned in this Article 5 but described in the Quote under Conexiom Fees shall be due and payable to ECMARKET upon receipt of an invoice.
5.9 Fee Increases
ECMARKET may, on written notice to SUBSCRIBER at least ninety (90) days prior to the end of the Initial Subscription Term, or Renewal Subscription Term, as applicable, change the Subscription Fees.
ARTICLE 6 - SECURITY
6. Security Implementation.
(a) Each Party shall be responsible for selecting, implementing, and maintaining appropriate security products, tools, and procedures sufficient to meet its requirement for protecting its programs, infrastructure, and data from improper access, use, loss, alteration, or destruction.
(b) ECMARKET shall protect Subscriber Data from inadvertent loss or corruption, but ECMARKET shall have no liability for the deletion, correction, destruction, damage or loss of, or for the failure to store, any Subscriber Data due to any act or omission of SUBSCRIBER, Permitted Affiliates or Trading Partners.
(c) Each Party shall implement tests, as may be necessary, to establish and monitor its security products, tools, and procedures to assess their adequacy relative to the Party’s needs and requirements.
ARTICLE 7 - SUBSCRIBER DATA.
7. Ownership of Subscriber Data.
(a) ECMARKET acknowledges that it acquires no right, title or interest in or to any of the data, information or material that is submitted to the CONEXIOM Service by SUBSCRIBER, Permitted Affiliates or the Trading Partners in the course of using the CONEXIOM Service.
7.2 Accuracy & Integrity of Subscriber Data.
(a) SUBSCRIBER acknowledges that ECMARKET shall not be responsible for the accuracy, quality, integrity, legality, appropriateness, or right of use of any Subscriber Data.
ARTICLE 8 - WARRANTY
8. Warranty of CONEXIOM Service.
(a) ECMARKET warrants that, during the Term, the CONEXIOM Service shall work substantially as described at the service levels set out in CONEXIOM Service Level Terms.
(b) ECMARKET's sole warranty obligation for the CONEXIOM Service shall be to correct any substantial nonconformity in the CONEXIOM Service by performing, in its sole discretion, either an update to the affected item or providing an alternative method that has substantially the same function.
(c) ECMARKET's warranty obligations for the CONEXIOM Service are subject to:
(i) SUBSCRIBER giving ECMARKET prompt written notice of any substantial malfunction, and in any event within ninety (90) days after it has become apparent;
(ii) the malfunction being repeatedly demonstrable; and
(iii) no unauthorized addition to or modification of the CONEXIOM Service having been undertaken.
8.2 Warranty of Onboarding.
(a) ECMARKET warrants that the Onboarding will be performed by persons who have the qualifications, knowledge, skill and ability to perform these activities and that ECMARKET will, at no additional cost to SUBSCRIBER, promptly re-perform the activity which does not meet that standard.
8.3 WARRANTY LIMITATION.
(a) THE WARRANTIES CONTAINED IN THIS 08 ARE IN LIEU OF ALL OTHER REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANT-ABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. EXCEPT AS EXPLICITLY SET OUT IN THIS 0, ECMARKET MAKES NO REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO THE CONEXIOM SERVICE OR SUBSCRIBER’S AND ITS PERMITTED AFFILIATES’ USE OF IT. ECMARKET DOES NOT REPRESENT OR WARRANT THAT THE CONEXIOM SERVICE SHALL MEET ANY OR ALL OF SUBSCRIBER’S, PERMITTED AFFILIATES’ OR TRADING PARTNERS’ PARTICULAR REQUIREMENTS OR THAT THE OPERATION OF THE CONEXIOM SERVICE SHALL OPERATE ERROR-FREE OR UNINTERRUPTED.
8.4 ACKNOWLEDGEMENT BY SUBSCRIBER.
(a) SUBSCRIBER acknowledges that:
(b) ECMARKET's is solely a supplier of the CONEXIOM Service, and that it is SUBSCRIBER's responsibility to determine its own data processing requirements and to satisfy itself that the CONEXIOM Service and related items meet SUBSCRIBER’s requirements; and
(c) Supplier is responsible for the selection, use of, and results obtained from any software or equipment used in conjunction with the CONEXIOM Service.
ARTICLE 9 - LIMITATIONS OF LIABILITY
9. CONEXIOM Service.
(a) Except for the Service Credits, if any, provided in CONEXIOM Service Level Terms, ECMARKET shall have no liability to SUBSCRIBER or any other party because of the failure or inaccuracy of the CONEXIOM Service.
9.2 LIMITATION OF LIABILITY.
(a) IN NO EVENT SHALL ECMARKET BE LIABLE FOR ANY INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES, INCLUDING WITHOUT LIMITATION LOSS OF PROFITS, BUSINESS OR DATA, ARISING UNDER OR RELATED TO THE FURNISHING, FUNCTIONING OR USE OF THE CONEXIOM SERVICE OR THE AGREEMENT, EVEN IF ECMARKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR SUCH DAMAGES ARE FORESEEABLE, AND REGARDLESS OF THE CAUSE OF ACTION (WHETHER BASED ON CONTRACT, TORT, INCLUDING NEGLIGENCE, OR ANY OTHER LEGAL OR EQUITABLE THEORY) UNDER WHICH SUCH DAMAGES ARISE AND IN NO EVENT SHALL ECMARKET BE LIABLE FOR ANY DAMAGES CLAIMED BY THE SUBSCRIBER BASED UPON ANY THIRD-PARTY CLAIM.
(b) THE MAXIMUM AGGREGATE LIABILITY OF ECMARKET ARISING OUT OF OR IN RELATION TO THE AGREEMENT, WHETHER ARISING FROM ANY CLAIM BASED ON BREACH OR REPUDIATION OF CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL OR EQUITABLE THEORY, SHALL IN NO CASE EXCEED THE AMOUNT OF SERVICE CREDITS.
ARTICLE 10 - INTELLECTUAL PROPERTY
10. Ownership of CONEXIOM Service.
10.1 SUBSCRIBER acknowledges that, except for the limited right granted under the Agreement to use the CONEXIOM Service, SUBSCRIBER acquires no right, title, ownership, or interest in or to any ECMARKET IP. ECMARKET IP also includes any AI or MI inputs or outputs, copies, reproductions, improvements, reports, modifications, adaptations, translations, and other derivative works of, based on, derived from, or otherwise produced through ECMARKET’s AI and MI. Ownership of Improvements.
(a) Creation of Improvements. Immediately upon creation, SUBSCRIBER expressly and irrevocably assigns to ECMARKET all right, title and interest in and to all Intellectual Property in and to all improvements to the ECMARKET IP that SUBSCRIBER conceives (collectively the “Improvements”).
(b) Disclosure of Improvements. SUBSCRIBER shall promptly disclose to ECMARKET all Improvements during the Term.
(c) Assistance in Recordation. SUBSCRIBER shall, at ECMARKET’s expense, provide reasonable commercial assistance, including the execution of documents, as is necessary for ECMARKET to evidence its sole Intellectual Property in and to all of the Improvements.
ARTICLE 11 - USE OF ARTIFICIAL INTELLIGENCE (AI) AND MACHINE LEARNING (MI)
11. Use of Artificial Intelligence (AI) and Machine Learning (MI)
11.1 Introduction
(a) ECMARKET employs AI and ML technologies to develop and enhance its products and services. These technologies are used to provide more accurate, efficient, and customized solutions to our customers. This Section 11 outlines the ECMARKET’s use of AI/ML in relation to customer data and model development.
11.2 AI/ML Development
(a) ECMARKET may use customer-provided data to train, validate, and refine AI/ML models. Such use is strictly governed by applicable data protection laws and the terms outlined in this Agreement. The primary purposes of this activity include:
(i) Improving product functionality and performance.
(ii) Generating insights to enhance customer operations.
(iii) Customizing features to better align with customer needs.
11.3 Data Usage and Confidentiality
(a) Ownership – Customer retains ownership of all data provided to the ECMARKET.
(b) Anonymization – Before using data for model development, ECMARKET will anonymize or aggregate data to remove personally identifiable information (PII), except where expressly permitted by the customer.
(c) Limitations – ECMARKET will not use customer data for purposes unrelated to the agreed-upon services.
11.4 AI/ML Intellectual Property
(a) Customer Contributions – Any data or feedback provided by the SUBSCRIBER that contributes to model training will not grant the customer ownership rights over the resulting AI/ML models or insights.
(b) ECMARKET IP – AI/ML models, algorithms, and derived insights are and remain the intellectual property of ECMARKET.
11.5 Transparency and Explainability
(a) ECMARKET will make reasonable efforts to provide transparency regarding
(i) How AI/ML models are used within its products and services.
(ii) The general methodologies employed, without disclosing proprietary details.
11.6 Limitations and Disclaimers
(a) AI/ML models are predictive tools and, while highly accurate, may not always produce perfect results. ECMARKET disclaims liability for decisions made by customers based on AI/ML-generated outputs, except as required by law.
11.7 Compliance and Ethical Standards
(a) ECMARKET’s use of AI/ML complies with applicable legal, ethical, and industry standards, including:
(i) Data protection regulations (e.g. GDPR, CCPA).
(ii) Fairness and non-discrimination principles in model development.
11.8 SUBSCRIBER Responsibilities
(a) SUBSCRIBER is responsible for:
(i) Ensuring the data provided to ECMARKET complies with applicable laws and contractual terms.
(ii) Informing ECMARKET of any restrictions or special considerations regarding data use.
11.9 Dispute Resolution
(a) Any disputes arising from the use of AI/ML models under this Agreement will be subject to the dispute resolution process outlined in Section 15 of this Agreement.
11.10 Updates to AI/ML Policies
(a) ECMARKET reserves the right to update its AI/ML policies to reflect changes in technology, regulations, or business practices. SUBSCRIBER will be notified of any material changes at least 30 days in advance.
ARTICLE 12 - INTELLECTUAL PROPERTY INDEMNIFICATION
12. Infringement Indemnification.
(a) If any part of the CONEXIOM Service is, in ECMARKET’s opinion, likely to or does become the subject of a Claim for infringement of any third party’s intellectual property rights, ECMARKET, at its option, may either:
(b) procure the right for the SUBSCRIBER to continue to use the CONEXIOM Service,
(c) modify the CONEXIOM Service to become non-infringing, if the modification does not adversely materially impact the performance of the CONEXIOM Service, or
(d) if none of the foregoing options are in ECMARKET's opinion commercially reasonable,
(e) terminate the Agreement in respect of the infringing portions of the CONEXIOM Service, in which case ECMARKET shall:
(i) refund to the SUBSCRIBER the fees paid by SUBSCRIBER to ECMARKET in the twelve months preceding the termination of the Agreement for the infringing portions of the CONEXIOM Service; and
(ii) subject to this Section 11.2 and 12.2 [Limitations of Liability], defend or settle the Claim and shall pay all damages and costs finally awarded against SUBSCRIBER after all appeals, and any and all costs reasonably and directly incurred by SUBSCRIBER.
12.2 Limitations on Indemnification.
(a) ECMARKET’s obligations under Section 12 [Infringement Indemnification] are subject to SUBSCRIBER’s strict compliance with all of the following:
(b) SUBSCRIBER must give ECMARKET prompt written notice of the Claim, access to all SUBSCRIBER information reasonably necessary to defend or settle the Claim, and complete authority to defend, negotiate and settle the Claim, provided the settlement does not impose liability on SUBSCRIBER;
(c) SUBSCRIBER must not settle or compromise the Claim without ECMARKET’s written consent; and
(d) the Claim must not be based on:
(i) the use or combination of the CONEXIOM Service with non-ECMARKET programs, data or equipment to the extent such infringement was caused by such use or combination; or
(ii) SUBSCRIBER’s negligence or the negligence of any of its Permitted Affiliates or Trading Partners.
12.3 Entire Liability for Infringement of Intellectual Property.
(a) THIS SECTION 12 STATES THE ENTIRE LIABILITY OF ECMARKET AND SUBSCRIBER’ SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO INFRINGEMENT BY THE CONEXIOM SERVICE OF PROPRIETARY OR INTELLECTUAL PROPERTY RIGHTS OF THIRD PARTIES.
ARTICLE 13 - INDEMNIFICATION BY SUBSCRIBER
13. Indemnification by SUBSCRIBER.
(a) SUBSCRIBER shall defend, indemnify and hold harmless ECMARKET and its Affiliates, and their respective directors, offices and employees, representatives and sub-contractors against all Claims arising from or relating to any claim that any Subscriber Data or any other materials provided by or on behalf of SUBSCRIBER or its Permitted Affiliates or a Trading Partner to ECMARKET, whether through the CONEXIOM Service or otherwise, infringe the intellectual property rights of a third party, including a Permitted Affiliate or Trading Partner.
ARTICLE 14 - CONFIDENTIALITY
14. Definitions.
(a) “Confidential Information” means any information that has been created, discovered, or developed by or for a Disclosing Party, or that has been made known to Disclosing Party. Confidential Information of ECMARKET includes the CONEXIOM Service, its related documentation and technology components, and its object code and source code. To be protected, Confidential Information that is disclosed:
(i) in writing, must be marked “Confidential” or “Proprietary”;
(ii) by delivery of items, or by access to a database, must be identified as “Confidential” or “Proprietary”;
(iii) it is of a nature that a reasonable person would (in all the circumstances) consider confidential; or
(iv) orally or visually, must at the time of disclosure be identified as confidential and memorialized in writing by the Disclosing Party within fifteen (15) days of the date of first disclosure;
(b) “Disclosing Party” means the Party disclosing its Confidential Information; and
(c) “Receiving Party” means the Party receiving the Confidential Information of the other Party.
14.2 Obligations.
(a) Disclosing Party shall treat all of Disclosing Party’s Confidential Information as confidential.
(b) Receiving Party shall protect the Confidential Information of the Disclosing Party in the same manner that it protects the confidentiality of its own Confidential Information of like kind but in no case with less than reasonable care.
(c) Receiving Party shall not use the Confidential Information of the Disclosing Party, except in connection with the performance of the Receiving Party’s obligations under, or as permitted by, the Agreement (collectively the “Purpose”).
14.3 Return of Confidential Information.
(a) Upon expiration or termination of the Term, or upon the written instruction of the Disclosing Party, the Receiving Party shall:
(b) return or destroy all of the Disclosing Party’s Confidential Information; and
(c) provide a certificate, signed by a senior officer of the Receiving Party, attesting to such return or destruction.
(d) A Receiving Party shall be deemed to have destroyed electronic Confidential Information when it executes an application or operating system-level, commercially reasonable permanent delete function on it. Despite the foregoing, each Receiving Party may retain one copy of the Disclosing Party’s Confidential Information for archival purposes.
14.4 Responsibility and Indemnity.
(a) Each Receiving Party shall be responsible to the Disclosing Party for any disclosure of Confidential Information that is not permitted by the Agreement to the extent caused by the Receiving Party and for any failure by the Receiving Party to comply with the Agreement. Each Receiving Party shall defend, indemnify and hold harmless the Disclosing Party, from and against any and all Claims arising out of any breach by the Receiving Party of this ARTICLE 14.
14.5 Ownership of Confidential Information.
(a) Except for the limited right to use the Disclosing Party’s Confidential Information for the Purpose, the Disclosing Party does not grant Receiving Party any right, title or interest in or to Disclosing Party’s Confidential Information.
14.6 Exceptions.
(a) The obligations of confidentiality set out in this ARTICLE 14 shall not apply in respect of uses or disclosures of Confidential Information where:
(b) the Disclosing Party consents in writing;
(c) a Receiving Party can establish with documentary evidence that, other than as a result of a breach of the Terms & Conditions, the Confidential Information:
(i) is available in the public domain;
(ii) was disclosed to it by a third party without violating confidentiality obligations; or
(iii) was already known by it or was subsequently developed by it without any use of Confidential Information,
(d) required by applicable regulatory authorities or by judicial or administrative process or timely disclosure requirements imposed by law or by stock exchange policies, if the Receiving Party first provides to the Disclosing Party prompt notice of the required disclosure, maintains confidentiality to the greatest extent permissible and takes such steps as may be reasonable in the circumstances to allow the Disclosing Party to seek a protective order with respect to the confidentiality of the information required to be disclosed.
14.7 Equitable Relief.
(a) Each Receiving Party acknowledges that, if it breaches its obligations under this ARTICLE 14, money damages would be inadequate to remedy such breach. Accordingly, the Disclosing Party shall be entitled to seek, and a court of competent jurisdiction may grant, specific performance and injunctive or other equitable relief as a remedy for any breach of the Terms & Conditions, and the Receiving Party waives any right that a bond be posted in connection with the granting of the injunctive or other equitable relief. Such remedy shall be in addition to all other remedies, including money damages, available to the Disclosing Party at law or in equity.
ARTICLE 15 - DISPUTES
15. Governing Law and Jurisdiction
(a) The Agreement shall be governed by the laws of British Columbia and the federal laws of Canada applicable therein, without reference to its conflicts of laws principles.
15.2 UN Convention on the International Sale of Goods.
(a) The United Nations Convention on Contracts for the International Sale of Goods shall not apply in any way to the Agreement or any matters arising from the Agreement or otherwise to create any rights or to impose any duties or obligations on any party to the Agreement.
15.3 Time Limit for Disputes.
(a) SUBSCRIBER shall not commence any Claim against ECMARKET, its directors, officers and employees, in connection with any dispute arising under the Agreement, or in connection with the subject matter of the Agreement, more than two (2) years after the basis for the Claim arises. Any Claim commenced more than two years after the basis for the Claim arises shall be null and void.
15.4 Arbitration.
(a) All disputes arising out of or in connection with the Agreement shall be finally settled under the Rules of the British Columbia International Arbitration Centre by one arbitrator appointed in accordance with its Rules.
15.5 Place of Arbitration.
(a) The arbitration shall be held in Vancouver, British Columbia, Canada or virtually as agreed upon by the Parties.
15.6 Arbitration Confidential.
(a) The Parties shall keep the arbitration confidential.
15.7 Language of Arbitration.
(a) The language of the arbitration shall be English.
(b) If any document submitted as evidence in the arbitration is in a language other than English, the Party submitting the document shall, at is expense, provide a certified translation of the document.
15.8 Decision Binding.
(a) All determinations arising out of the arbitration process shall be final and binding upon the Parties.
15.9 Services Uninterrupted.
(a) Except for disputes relating to the Intellectual Property rights of a Party or to Confidential Information, each Party shall continue to perform its obligations during the resolution of any dispute or disagreement, including during any period of arbitration, until the Agreement is terminated or expires.
ARTICLE 16 - FORCE MAJEURE.
16. Definition.
(a) “Force Majeure” means any contingency beyond the reasonable control of a Party, including acts of God, fires, floods, wars, sabotage, civil unrest, accidents, pandemics or epidemics, labor disputes (other than those with the employees of the Party claiming Force Majeure), government laws, rules and regulations, whether valid or invalid, except that lack of funds or credit for payment under the Agreement shall not constitute a Force Majeure.
16.2 Effect of Force Majeure.
(a) Neither Party shall be responsible or liable for any delay or failure to perform due to Force Majeure if the affected Party:
(i) notifies the other Party as soon as practicable in the circumstances of the nature and anticipated duration of the Force Majeure event as well as the steps it intends to take to overcome the Force Majeure event; and
(ii) takes all reasonable steps to prevent and minimize the delay or failure to perform.
(b) The foregoing shall not apply to any failure to make any payment when due.
ARTICLE 17 - TERM, RENEWAL & TERMINATION
17. Initial Term.
(a) The initial term of the Agreement shall start on the Subscription Start Date and shall end, unless sooner terminated per this ARTICLE 17, the number of months specified as the Initial Subscription Term on the Quote, later (the “initial Subscription Term”).
17.2 Renewal Subscription Term.
(a) Unless either Party provides written notification of termination to the other Party at least sixty (60) days prior to the end of the Initial Subscription Term, or Renewal Subscription Term, as applicable, the Agreement will automatically renew for a succession of one (1) year periods (each a “Renewal Subscription Term”).
17.3 Termination for Default.
(a) Each Party may terminate the Agreement at any time on written notice to the other Party if the other Party is in default of any material term of the Agreement and, where the default is capable of being remedied, fails to remedy its default within thirty (30) days of receipt of that notice. For greater certainty, material default includes:
(b) the failure of SUBSCRIBER to pay any amount not in dispute when due;
(c) a Party:
(i) terminates or suspends doing business;
(ii) becomes bankrupt or insolvent, makes an assignment for the benefit of its creditors, or has a receiver or manager or administrator appointed of the whole or any part of its assets or business;
(iii) makes any composition or arrangement with its creditors; or
(iv) takes or suffers any similar action in consequence of debt or an order or resolution is made for its dissolution or liquidation; or
(d) a Party breaches its obligations under ARTICLE 14 [Confidentiality].
(e) For greater certainty, a breach of ARTICLE 14 [Confidentiality] is not capable of being remedied.
17.4 Termination for Change of Control.
(a) SUBSCRIBER shall notify ECMARKET in writing within ten (10) days of a Permitted Affiliate ceasing to be an Affiliate of SUBSCRIBER (a “Change of Control”)
(b) ECMARKET may terminate the portion of the Agreement that relates to the affected Permitted Affiliate, in which case the Permitted Affiliate shall have ninety (90) days from the date on which the Permitted Affiliate ceased to be an Affiliate of SUBSCRIBER to negotiate a separate agreement with ECMARKET for use of the CONEXIOM Service, failing which the Agreement shall immediately terminate in respect to that Permitted Affiliate.
17.5 Termination by SUBSCRIBER for Default.
(1) If SUBSCRIBER terminates the Agreement for Default of ECMARKET, ECMARKET shall promptly pay SUBSCRIBER any service credits determined per “Credits” in CONEXIOM Service Level Terms not previously applied. The foregoing shall be SUBSCRIBER’s sole remedy for ECMARKET’s failure to provide the agreed Production Service level.
17.6 Effect of Termination.
(a) Upon termination of the Agreement for any reason or on expiration:
(b) SUBSCRIBER shall pay all sums owing to ECMARKET under the Agreement; and
(c) each Party shall return to the other Party or destroy all confidential information of the other Party in its possession or control, and each shall deliver a certificate of an officer of the Party certifying that it has complied;
(d) the following provisions shall survive:
(i) Article 1 - DEFINITIONS & INTERPRETATION;
(ii) ARTICLE 4 – CONEXIOM SERVICE LEVEL TERMS;
(iii) ARTICLE 5 – FEES, INVOICING, & PAYMENT;
(iv) ARTICLE 8 - WARRANTY;
ARTICLE 9 - LIMITATIONS OF LIABILITY;
(v) ARTICLE 10 - INTELLECTUAL PROPERTY;
(vi) ARTICLE 11 – USE OF ARTIFICIAL INTELLIGENCE (AI) AND MACHINE LEARNING (MI);
(vii) ARTICLE 13 - INDEMNIFICATION BY SUBSCRIBER;
(viii) [ARTICLE 14 - CONFIDENTIALITY;
(ix) Section 14.8 Decision Binding;
(x) this ARTICLE 17; and
(xi) ARTICLE 18 - GENERAL.
ARTICLE 18 - GENERAL
18. Authorization
(a) Each party represents and warrants to the other that it has full authorization to enter into and fully perform the provisions of the Agreement, that the provisions of the Agreement are valid and binding against it, and that entering into and performing the Agreement will not constitute a violation of any law, regulation, contract, or understanding applicable to such party.
18.2 Waiver
(a) The failure of either Party to enforce or to exercise, at any time or for any period of time, any provision of or any right arising pursuant to the Agreement, does not constitute, and shall not be construed as, a waiver of such item or right and shall in no way affect that Party's right to later enforce or exercise it.
18.3 Severability
(a) If any provision of the Agreement shall be held to be invalid, illegal or unenforceable under any applicable statute or rule of law, the validity, legality and enforceability of the remaining provisions shall in no way be affected or impaired.
18.4 Amendments.
(a) Except for the Commercial Provisions, which shall be updated from time to time, no amendment, change, waiver or discharge with respect to a Quote or related Schedules shall be valid unless it is in writing and signed by the Party against which such amendment, change, waiver or discharge is sought to be enforced.
18.5 Time.
(a) Time is of the essence of the Agreement.
18.6 Assignment.
(a) SUBSCRIBER shall not assign the Agreement or any of its rights and obligations under it, in whole or in part, without the express written consent of ECMARKET (which consent shall not be unreasonably withheld, conditioned or delayed), and any attempt to do so shall be null and void. ECMARKET, or its permitted successive assignees or transferees, may assign or transfer this Agreement or delegate any rights or obligations hereunder without consent: (1) to any entity controlled by, or under common control with, ECMARKET, or its permitted successive assignees or transferees; or (2) in connection with a merger, reorganization, transfer, sale of all or some assets or product lines, or change of control or ownership of ECMARKET, or its permitted successive assignees or transferees. In the event that during the term of this Agreement, ECMARKET divests itself of less than all of its assets, then the resulting divested entity or entities may also receive the benefits and rights that ECMARKET does under this Agreement. Without limiting the foregoing, this Agreement will be binding upon and inure to the benefit of the parties and their permitted successors and assigns.
18.7 Enurement.
(a) The Agreement shall be binding upon and shall enure to the benefit of the parties and their respective successors and permitted assigns.
18.8 Notices.
(a) All notices given under the Agreement shall be in writing and shall be delivered by courier, or receipt-confirmed e-mail:
(i) in the case of ECMARKET, to:
|
Name |
John McNeill |
|
Title |
CEO |
|
Courier Address |
Suite 1400 - 1140 Pender Street West, Vancouver, British Columbia, Canada V6E 3L2 Attention: Legal Services. Telephone for Couriers: +1.604.638.2300 |
|
|
Legal@ECMARKET.com |
(ii) in the case of SUBSCRIBER, as set out in the Quotation
(b) Each Party may, from time to time, change its address by giving the other Party notice as above.
18.9 Relationship of the Parties.
(a) The Parties are independent contractors, and nothing in the Agreement shall accord any status to a Party of being the employee, partner, joint venturer, franchisee or agent of the other, nor to permit a Party to bind the other except as through this Agreement.
18.10 Counterparts.
(a) The Agreement may be executed in one or more counterparts (including, but not limited to, by fax or other means of electronic communication producing a printed copy), each of which will be deemed an original, but all of which together will constitute the same instrument.
18.11 Entire Agreement
(a) The Agreement, the documents described or referred to herein, and the appendices, schedules, exhibits, and Commercial Provisions hereto form the entire agreement between the Parties with respect to the subject matter hereof and supersede all prior agreements, understandings and negotiations. There is no representation, warranty, collateral term or condition or collateral agreement affecting the Agreement, other than as expressed in writing in the Agreement. Any purchase order or other instrument of SUBSCRIBER accompanying any documents delivered in connection with the Agreement or a SUBSCRIBER payment is for SUBSCRIBER’s internal use only and its terms will not alter or amend the terms of the Agreement.
18.12 Independent Parties.
(a) Nothing in the Agreement shall make or be construed to make ECMARKET and SUBSCRIBER partners or agents of each other or to create any other relationship by which the acts of any Party may bind the others or result in any liability to the other.
18.13 Language.
(a) The Parties agree that the Agreement all correspondence, information, documentation and any other written materials relating to the Agreement (excluding any such correspondence, information, documentation or other written materials expressly required hereunder to be written in another language), shall be in the English language.
18.14 Customer References.
(a) During the Term, SUBSCRIBER shall permit ECMARKET to include SUBSCRIBER’s name on ECMARKET’s customer list.
18.15 Assistance in Recordation.
(a) SUBSCRIBER shall, at ECMARKET’ expense, provide reasonable commercial assistance, including the execution of documents, as is necessary for ECMARKET to evidence its sole Intellectual Property in and to the Documentation and the CONEXIOM Service, excluding any licensed third-party elements incorporated in the ECMARKET proprietary CONEXIOM Service.
18.16 Government End-Users.
(a) The CONEXIOM Service is a commercial computer service. If SUBSCRIBER is an agency, department, or other entity of the United States Government, the use, duplication, reproduction, release, modification, disclosure, and transfer of the CONEXIOM Service shall be governed by the provisions of the Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. ECMARKET asserts that it has developed the CONEXIOM Service solely at private expense. All other use is prohibited.
(End of Commercial Provisions)
4918-0387-1523, v. 1