Last Modified: November 25, 2022
These Terms and Conditions of Service (these “Terms“), together with the signed written
subscription agreement, as amended if applicable (the “Subscription”) between the person
identified on the Subscription as “Customer” (“Customer”) and Advantage Complete Inc.
(“Advantage“), form a binding contract between Customer and Advantage. This Agreement
(as defined below) governs Customer’s access to and use of the Services (as defined
below).
- Definitions
(a) “Acceptable Use Policy” has the meaning set forth in Section 3(a).
(b) “Advantage Application” means a hosted instance of the Advantage Complete
application software containing the modules, components and options specified in Schedule
A to the Subscription.
(c) “Advantage IP” means the Services, the Documentation, and all intellectual property
provided to Customer or any other Authorized User in connection with the foregoing. For the
avoidance of doubt, Advantage IP includes Aggregated Statistics and any information, data,
or other content derived from Advantage’s monitoring of Customer’s access to or use of the
Services, but does not include Customer Data.
(d) “Aggregated Statistics” has the meaning set forth in Section 2(e).
(e) “Agreement” means these Terms, the Subscription, and any document, schedule, or
exhibit incorporated by reference in the Subscription or these Terms.
(f) “Authorized Sessions” are the maximum number of simultaneously active authorized
Sessions specified in the Subscription.
(g) “Authorized User” means Customer and Customer’s employees, consultants,
contractors, and agents (i) who are authorized by Customer to access and use the Services
under the rights granted to Customer pursuant to this Agreement and (ii) for whom access to
the Services have been paid for.
(h) “Confidential Information” has the meaning set forth in Section 9.
(i) “CPI” means the applicable monthly Consumer Price Index for all items not seasonally
adjusted as determined by Statistics Canada calculated on a year-over-year % basis for the
applicable period.
(j) “Customer Data” means, other than Aggregated Statistics, information, data, and other
content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on
behalf of Customer or any other Authorized User through the Services.
(k) “Documentation” means the end user documentation relating to the Services that
Advantage makes available or provides to Customer in any form or medium and which
describe the functionality, components, features or requirements of the Services.
(l) “Fees” has the meaning set forth in Section 6(a).
(m) “Increased Fees Threshold Amount” means the cumulative amount of Support Fees
for the Support Fees Items included in the Services at the applicable time calculated using
the greater of 5% or CPI for each applicable year, compounded annually and proportionally
adjusted for less than a year as applicable, (i) with the starting base amount being the
amount of Support Fees applicable to the Support Fees Items when they were initially added
to the Services and calculated from the later of the Term Start Date or the date such Support
Fees Items were added as applicable except and provided that if there has previously been a
Support Fees Reset at such time, then (ii) with the starting base amount being the amount of
Support Fees applicable to the Support Fees Items at the most recent Support Fees Reset
or when such Support Fees Items were initially added to the Services if added after such
Support Fees Reset and calculated from the effective date of the most recent Support Fees
Reset or when such Support Fees Items were added as applicable. For clarity, if the date of
a Support Fees Reset, or the date a Support Fees item is added, is not on the 1 day of a
st
st
calendar month, it will be deemed for the purposes of this definition to have an effective date
on the 1 day of the subsequent calendar month.
(n) “Internal Business Operations” means Customer’s business description and address
specified in the Subscription.
(o) “Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty,
common law, judgment, decree, or other requirement of any federal, provincial, territorial,
municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or
tribunal of competent jurisdiction.
(p) “Losses” has the meaning set forth in Section 13(a)(i).
(q) “New Services” means features, functions, modules, components, supplemental
services, associated products or integrated Third Party Products designated and
communicated by Advantage to be services available from Advantage that Customer may be
able to subscribe to for incremental Fees as determined by Advantage.
(r) “Operating Hours” means Monday to Saturday, 7am to 11pm in Toronto, Ontario.
(s) “Privacy Policy” has the meaning set forth in Section 10.
(t) “Service Levels” has the meaning set forth in Section 5(a).
(u) “Services” means collectively Sessions, the Documentation, Website and all related
equipment, software, supplies, hosting and other services provided by Advantage under this
Agreement.
(v) “Service Suspension” has the meaning set forth in Section 2(g).
(w) “Session” means one active instance of the Advantage Application.
(x) “Support” means technical support and trouble-shooting for Services not functioning in
accordance with the Documentation and specifications and may include updates, revisions,
modifications, general enhancements, and other changes to the Services which Advantage
or its Third Party Products make generally available to Customer at no additional charge
than existing Fees. For clarity, Support excludes Customer set-up, Training, New Services
and Customer custom programming including custom report and form generation and
Customer requested modifications to the Services.
(y) “Support Fees” and “Support Fees Items” have the meanings ascribed to them in
Section 6(a).
(z) “Support Fees Reset” has the meaning set forth in Section 6(b).
(aa) “Term“, “Initial Term“, and “Renewal Term” have the meanings ascribed to them in
Section 15(a).
(bb) “Term Start Date” means the day of the calendar month Customer goes live using the
Services unless such day is not on the first day of a Calendar Month, then on the first day of
the immediately following calendar month.
(cc) “Third Party Claim” has the meaning set forth in Section 13(a)(i).
(dd) “Third Party Products” means any products, content, services, information, websites,
or other materials that are owned by third parties and are incorporated into or accessible
through the Services or utilized to make the Services available to the Customer.
(ee) “Training” means instruction however provided on how to use the Services. Unless
otherwise agreed in writing between Customer and Advantage, Training will be provided
virtually through an interface specified by Advantage.
(ff) “Uptime Level” has the meaning set forth in Section 5(a)(i).”Website” means
Advantage’s website, located at advantagecomplete.ca.
(gg) “Website” means Advantage’s website, located at advantagecomplete.ca. - Access and Use.
(a) Provision of Access. Subject to and conditioned on Customer’s payment of Fees and
compliance with all other terms and conditions of this Agreement, Advantage hereby grants
to Customer a revocable, non-exclusive, non-transferable, non-sublicensable, limited right to
access and use the Services during the Term solely for Customer’s Internal Business
Operations by Authorized Users in accordance with the terms and conditions herein.
Advantage shall provide, or enable the Customer to obtain, the necessary access credentials
to allow Customer to access the Services and set up and delete Authorized Users. Customer
shall select complex passwords consistent with best industry practices for secure passwords
and at least as strict as Advantage’s secure password policy that shall be used with the
access credentials.
(b) Documentation Licence. Subject to the terms and conditions contained in this Agreement,
Advantage hereby grants Customer a non-exclusive, non-sublicensable, non-transferable
licence for Authorized Users to use the Documentation during the Term solely for Customer’s
Internal Business Operations in connection with use of the Services and for no other
purpose. The Customer shall include on all copies of the Documentation that Customer has
in its possession the form of designation Advantage reasonably requires to indicate that such
material is the property of Advantage or a third party.
(c) Downloadable Software. Use of the Services may require or include use of downloadable
software. Advantage grants Customer a non-transferable, non-exclusive, non-assignable,
limited right for Authorized Users to use downloadable software Advantage provides as part
of the Services. Any Third Party Products that consist of downloadable software are subject
to the terms of Section 3(f).
(d) Use Restrictions.
(i) Customer shall not, and shall not permit any Authorized Users to, use the Services
including any software component of the Services or Documentation for any purposes
beyond the scope of the access granted in this Agreement.
(ii) Customer shall not at any time, directly or indirectly, and shall not permit any Authorized
Users to: (A) copy, modify, or create derivative works of the Services in whole or in part; (B)
rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise
make available the Services except as expressly permitted under these Terms, which, for
clarity, includes a general prohibition with sharing any password and/or access credentials
among Authorized Users or otherwise; (C) reverse engineer, disassemble, decompile,
decode, adapt, or otherwise attempt to derive or gain access to any software component of
the Services, in whole or in part; (D) remove any proprietary notices from the Services; or (E)
use the Services in any manner or for any purpose that infringes, misappropriates, or
otherwise violates any intellectual property right or other right of Advantage or any other
person, or that violates any applicable Law or in any manner that is otherwise contrary to the
Acceptable Use Policy.
(iii) Customer shall ensure that no person other than an Authorized User has access to the
Services through the access credentials and mechanisms provided to Customer. Customer
will promptly delete all credentials for accessing the Services for anyone who is no longer an
Authorized User.
(iv) Advantage may permit Customers to have more Authorized Users than Authorized
Sessions for convenience and the internal management of Customer’s operations.
Notwithstanding that the number of Authorized Users may be greater than the number of
Authorized Sessions, or that an Authorized User may open more than one Session
simultaneously, Customer shall ensure that at all times the number of Sessions being used
simultaneously at any time shall not exceed the number of Authorized Sessions. Advantage
may, but is not obligated, to enable Customer to use more Sessions simultaneously than the
number of Authorized Sessions, and in such event Advantage may charge Customer
overage fees at Advantage’s then-current overage rates.
(e) Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement,
Advantage may monitor Customer’s and Authorized Users’ use of the Services and collect
and compile data and information related to Customer’s and Authorized Users’ use of the
Services to be used by Advantage in an aggregated and anonymized manner, including to
compile statistical and performance information related to the provision and operation of the
Services (“Aggregated Statistics“). As between Advantage and Customer, all right, title, and
interest in Aggregated Statistics, and all intellectual property rights therein, belong to and are
retained solely by Advantage. Customer acknowledges that Advantage may compile
Aggregated Statistics based on Customer Data input into the Services. Customer agrees that
Advantage may (i) make Aggregated Statistics publicly available in compliance with
applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted
under applicable Law; provided that such Aggregated Statistics do not identify Customer or
Customer’s Confidential Information.
(f) Reservation of Rights. Advantage reserves all rights not expressly granted to Customer in
these Terms. Except for the limited rights and licences expressly granted under these Terms,
nothing in this Agreement grants, by implication, waiver, estoppel, or otherwise, to Customer
or any third party any intellectual property rights or other right, title, or interest in or to the
Advantage IP.
(g) Suspension. Notwithstanding anything to the contrary in this Agreement, Advantage may
temporarily suspend Customer’s and any other Authorized User’s access to any portion or all
of the Services if:
(i) Advantage reasonably determines that (A) there is a threat or attack on any of the
Advantage IP; (B) Customer’s or any other Authorized User’s use of the Advantage IP
disrupts or poses a security risk to the Advantage IP or to any other customer, contractor or
vendor of Advantage or is outside the Internal Business Operations of the Customer; (C)
Customer or any other Authorized User is using the Advantage IP for fraudulent, illegal or
improper activities or in any way inconsistent with the Acceptable Use Policy; (D) Customer’s
use of the Service causes or may cause harm to Advantage’s reputation; (E) subject to
applicable Law, Customer has ceased to continue its business in the ordinary course, made
an assignment for the benefit of creditors or similar disposition of its assets, or become the
subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(F) Advantage’s provision of the Services to Customer or any other Authorized User is
prohibited by applicable Law;
(ii) any vendor of Advantage has suspended or terminated Advantage’s access to or use of
any Third Party services or products required to enable Customer to access the Services; or
(iii) Customer has not made prompt payments of Fees in accordance with Section 6.
(any such suspension described in subclause (i), (ii), or (iii), being a “Service Suspension“)
Advantage shall use commercially reasonable efforts to provide notice of any Service
Suspension to Customer and to provide updates regarding resumption of access to the
Services following any Service Suspension. Advantage shall use commercially reasonable
efforts to resume providing access to the Services as soon as reasonably possible after the
event giving rise to the Services Suspension is cured.
ADVANTAGE WILL HAVE NO LIABILITY FOR ANY DAMAGE, LIABILITIES, LOSSES
(INCLUDING ANY LOSS OF DATA OR PROFITS), OR ANY OTHER CONSEQUENCES
THAT CUSTOMER OR ANY OTHER AUTHORIZED USER MAY INCUR AS A RESULT OF A
SERVICE SUSPENSION. - Customer Responsibilities.
(a) Acceptable Use Policy. The Services may only be used for the Internal Business
Operations of the Customer and shall not be used for any unlawful, fraudulent, offensive,
obscene or improper activity (the “Acceptable Use Policy”). Advantage may, at its discretion,
develop a formal Acceptable Use Policy consisting of formal rules, guidelines, standards and
requirements to clarify the foregoing, and Advantage may amend same from time to time. If
Advantage elects to further develop an Acceptable Use Policy, such Acceptable Use Policy
will be linked to these Terms and incorporated by reference. Customer will comply with all
terms and conditions of this Agreement, all applicable Laws and all guidelines, standards,
and requirements that may be set out in any formal Acceptable Use Policy.
(b) Customer Administration. The Customer is responsible to appoint and maintain a
Services administrator to be the primary administrative interface with Advantage and to
communicate such administrator’s contact information to Advantage when appointed. The
selected administrator will have adequate skill to be responsible for implementing and
administering the Services in the Customer’s Internal Business Operations in accordance
with this Agreement, including conducting internal education and audits of Authorized Users
on the proper and permitted use of the Services, and ensuring Authorized Users participate
in all required Services training.
(c) Customer Information. Customer shall keep Advantage apprised of the authorized
personnel Advantage is entitled to interface with to make decisions for Customer and will
promptly provide all other Customer information reasonably required or requested by
Advantage.
(d) Account Use. Customer is responsible and liable for all uses of the Services resulting
from access provided by Customer, directly or indirectly, whether such access or use is
permitted by or in violation of this Agreement. Without limiting the generality of the foregoing,
Customer is responsible for all acts and omissions of Authorized Users, and any act or
omission by an Authorized User that would constitute a breach of this Agreement if taken by
Customer will be deemed a breach of this Agreement by Customer. Customer shall use
reasonable efforts to make all Authorized Users aware of the provisions of this Agreement as
applicable to such Authorized User’s use of the Services, and shall cause Authorized Users
to comply with such provisions.
(e) Customer Data. Customer hereby grants to Advantage and the suppliers of Third Party
Products a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and
otherwise use and display the Customer Data and perform all acts with respect to the
Customer Data as may be necessary for Advantage to provide the Services to Customer,
and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce,
distribute, modify, and otherwise use and display Customer Data incorporated within the
Aggregated Statistics. Customer will ensure that Customer Data and any Authorized User’s
use of Customer Data will not violate any policy or terms referenced in or incorporated into
this Agreement or any applicable Law. Customer is solely responsible for the development,
content, operation, maintenance, and use of Customer Data.
(f) Passwords and Access Credentials. Customer is responsible for keeping Customer’s
passwords and access credentials associated with the Services confidential. Customer will
ensure that the passwords that it and its Authorized Users select will be sufficiently complex
and secure in accordance with best practices for choosing passwords, and at least to the
level required by Advantage’s guidelines and that such passwords and access credentials
will be confidential, and memorized or stored in a secure environment. No access credentials
shall be shared between Authorized Users or any other person. Customer will use 2-factor
authentication where possible. Customer will not sell or transfer passwords or access
credentials to any other person or entity. Customer will promptly notify Advantage about any
unauthorized access to Customer’s or other Authorized Users’ passwords or access
credentials. Customer will not provide access credentials, and shall not permit any
Authorized User to provide access credentials, to any person who is not an Authorized User.
(g) Third Party Products. The Services may permit access to Third Party Products and
access to the Services may require use of certain Third Party Products. For purposes of this
Agreement, such Third Party Products are subject to their own terms and conditions, which
may be presented to Customer for acceptance when Customer installs the Third Party
Products or presented within the Services by website link or otherwise. Customer hereby
agrees to be bound by the terms of those licenses and to execute and deliver to Advantage
any contracts or other documents reasonably required by Advantage in order to secure
Customer’s compliance required for such Third Party Products. If Customer does not agree
to abide by the applicable terms for any such Third Party Products, then Customer should
not install, access, or use such Third Party Products.
ADVANTAGE IS NOT RESPONSIBLE FOR ANY THIRD PARTY PRODUCTS, INCLUDING
WITHOUT LIMITATION ANY LOSS OF ACCESS TO THE SERVICES RELATING TO OR
RESULTING FROM THE AVAILABILITY OR NON-AVAILABILITY OF THE THIRD PARTY
PRODUCTS.
(h) Customer Infrastructure. Customer will be responsible to provide at its expense all
requisite high speed internet connections, equipment, devices, peripherals and other
customer infrastructure and requirements to securely access and properly utilize the
Services. - Location of Customer’s Use of the Services. The Services are not intended or
permitted for use outside of Canada. Customer covenants, represents and warrants to
Advantage that it has not, and shall not use the Services outside of Canada. Customer
represents and warrants to Advantage that it and its Authorized Users are resident
Canadians, that its business location(s) is in Canada as specified in the Internal Business
Operations and that use of the Services shall not violate any Laws, including import or export
Laws. Customer covenants, represents, and warrants that it shall use the Services only
within the province specified in its Internal Business Operations. - Service Level and Support
(a) Service Levels. Subject to the terms and conditions of this Agreement, Advantage shall
use commercially reasonable efforts to make the Services available in accordance with this
Section 5(a) as follows: (the “Service Levels”)
(i) Advantage shall take commercially reasonable steps to ensure that the Services are
available 90% of the time during the Operating Hours (the “Uptime Level”);
(ii) Advantage may make the Services available outside the Operating Hours, but Advantage
expressly disclaims any representation or warranty with respect to the availability of the
Services outside Operating Hours;
(iii) Uptime Level will be calculated on a minute-by-minute basis for a given month,
determined by the fraction that has as its numerator the number of minutes during the
Operating Hours that the Services were available and has as its denominator the total
number of minutes during the Operating Hours in a given month;
(iv) In determining the Uptime Level, no regard shall be given in the denominator referred to
in Section 5(a)(iii) to any failure, downtime, or loss of access due to Customer’s infrastructure
including internet services between Customer and Advantage’s servers, or due to any Third
Party Products, Service Suspension or Force Majeure;
(iv) In the event that the Uptime Level falls below 90% in a given month once the Initial Term
has commenced, Customer may provide written notice to Advantage within 30 days of the
end of such month, together with a copy of it calculations of Uptime Levels for such month,
and request a non-refundable account credit. Upon verification by Advantage, the Customer
will be provided with an account credit towards Customer’s next due Monthly Fees equal to
the difference between the Monthly Fees paid by Customer for such month and the amount
obtained by pro-rating the Monthly Fees paid by Customer for such month on a straight-line
basis in accordance with the fraction determined in Section 5(a)(iii) representing the Uptime
Level for such month.
THE REMEDIES SET OUT IN THIS SECTION 5(a) SHALL BE CUSTOMER’S SOLE
REMEDY WITH RESPECT TO THE SERVICE LEVELS.
(a) Support. During the Term, Customer is entitled to Support from 9:00 am to 5:00 pm
(Toronto time), Monday to Friday. All Support is offered via telephone or through any support
ticketing system that Advantage may make available from time to time. Advantage shall use
commercially reasonable efforts to provide Support assistance but as further described in
Section 12, Advantage makes no warranty whatsoever with respect to Support including any
failure or inability to provide requested Support.
(b) Training. Customer is entitled to the Training set out in the Subscription. Additional
Training is available at Advantage’s current training rate, as may be amended from time to
time. All Training will be conducted virtually at a mutually convenient time between 9am and
5pm (Toronto time). On-site Training may be made available on a case-by case basis on fees
and terms to be negotiated. Current costs and schedules are available upon request.
Customer is responsible for ensuring its Authorized Users complete all recommended
prerequisite training and are available to attend scheduled Training with Advantage.
(c) Data Conversion and Restoration. If specified in the Subscription, Advantage may attempt
to convert and transfer data from a Customer data source or to restore data from a backup
source. Customer acknowledges and agrees that it may not be possible to convert or restore
some or all of the data from the Customer data source or backup source. In the event that
manual entry of data is required on a conversion or backup attempt by Advantage, it will be
performed by Customer, at Customer’s expense. As further described in Section 12,
Advantage makes no warranty whatsoever with respect to the conversion or restoration of
any data of the Customer.
(d) Location of Data. Advantage may use servers and storage in Canada, the United States
of America, or elsewhere. The Services including the Advantage Application and the
Customer Data may be stored and hosted on a shared virtual machine or virtual machines or
such other infrastructure as Advantage may determine from time to time. - Fees and Payment.
(a) Fees. Customer shall pay to Advantage all of the fees and amounts payable under this
Agreement (“Fees”) without set-off or deduction of any kind. All Fees are payable in
Canadian dollars. Fees characterized or described in the Subscription as setup or training
fees are due when Customer signs the Subscription and payable in the manner specified by
Advantage. Fees characterized or described in the Subscription as “monthly support fees”
(“Support Fees” and Services items attracting Support Fees, “Support Fees Items”), together
with all other Fees categorized or described as payable “monthly”, shall be paid in advance
by pre-authorized payment monthly on or before the due date unless otherwise advised by
Advantage. Customer shall promptly execute and return any pre-authorized payment form as
may be required by Advantage or its bank from time to time. All other Fees are due when
specified by Advantage or within thirty (30) days from the invoice date and payable as
directed by Advantage. In the event the Subscription is silent with respect to any Fees, Fees
will be at Advantage’s then-current fees from time to time. If Customer fails to make any
payment when due, without limiting Advantage’s other rights and remedies: (i) Advantage
may charge interest on the past due amount at the rate of 18% per annum or, if lower, the
highest rate permitted under applicable Law; (ii) Customer shall reimburse Advantage for all
costs incurred by Advantage in collecting any late payments or interest, including legal fees,
court costs, and collection agency fees; and (iii) if such failure continues for fifteen (15) days
or more, Advantage may suspend, in accordance with Section 2(g), Customer’s and all other
Authorized Users’ access to any portion or all of the Services until such amounts are paid in
full. For clarity, a returned payment by Customer for insufficient funds shall be viewed as
non-payment.
(b) Fee Increases. During the first 12 months of the Initial Term, Advantage shall not increase
any Support Fees. At any time or times following the first 12 months of the Initial Term,
including at any time or times during a Renewal Term, Advantage may increase any one or
more of the Support Fee(s) as it determines appropriate for the Services, which will
thereafter become the applicable Support Fee(s) from the effective date of such increase.
Advantage shall provide notice of any increase in the Monthly Support Fees by email or
otherwise in writing to Customer’s Internal Business Operations address. In the event the
cumulative amount of Support Fees after the increase exceeds the Increased Fees
Threshold Amount calculated at the effective date of such increase, it will be a “Support Fees
Reset”. In the event of a Support Fees Reset, Customer may terminate this Agreement on
written notice to Advantage within 90 days of Advantage providing its notice thereof, provided
that Customer’s continued use of the Services following the 90-day period shall be deemed
to be acceptance of such increase in the Monthly Support Fees. Notwithstanding the
foregoing, Advantage may increase rates for any Fees other than Monthly Support Fees,
including without limitation, any fees categorized or described in the Subscription as training
fees, setup fees, one-time or non-recurring fees, to its then-current rates from time to time
without restriction.
(c) Non-Refundable. All Fees paid to Advantage in accordance with this Agreement are
irrevocable and non-refundable. - Taxes. All Fees and other amounts payable by Customer under this Agreement are
exclusive of taxes and similar assessments. Customer is responsible for all harmonized
sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax,
use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed
by any federal, provincial, territorial, or local governmental entity on any amounts payable by
Customer hereunder, other than any taxes imposed on Advantage’s income. - Auditing Rights and Required Records. Customer agrees to maintain complete and
accurate records in accordance with generally accepted accounting principles during the
Term and for a period of 3 years after the termination or expiration of this Agreement with
respect to matters necessary for accurately determining amounts due hereunder. Advantage
may, at its own expense, on reasonable prior notice, periodically inspect and audit
Customer’s records with respect to matters covered by this Agreement, provided that if such
inspection and audit reveals that Customer has underpaid Advantage with respect to any
amounts due and payable during the Term, Customer shall promptly pay the amounts
necessary to rectify such underpayment, together with interest in accordance with Section
6(a). Customer shall pay for the costs of the audit if the audit determines that Customer’s
underpayment equals or exceeds 5% for any quarter. Such inspection and auditing rights will
extend throughout the Term of this Agreement and for a period of 3 years after the
termination or expiration of this Agreement. - Confidential Information. From time to time during the Term, Advantage and Customer
may disclose or make available to the other party information about its business affairs,
products, confidential intellectual property, trade secrets, third party confidential information,
and other sensitive or proprietary information that a reasonable person would consider
confidential, whether orally or in written, electronic, or other form or media, and whether or
not marked, designated, or otherwise identified as “confidential” at the time of disclosure
(collectively, “Confidential Information“). Confidential Information does not include
information that, at the time of disclosure is: (a) in the public domain; (b) previously known to
the receiving party outside of any obligation of confidentiality and from a person who is not
under an obligation of confidentiality; (c) rightfully obtained by the receiving party on a non
confidential basis from a third party; or (d) independently developed by the receiving party.
The receiving party shall not disclose the disclosing party’s Confidential Information to any
person or entity, except to the receiving party’s employees, contractors or professional
advisors who have a need to know the Confidential Information for the receiving party to
exercise its rights or perform its obligations hereunder and who are required to protect the
Confidential Information in a manner no less stringent than required under this Agreement.
Notwithstanding the foregoing, each party may disclose Confidential Information to the
limited extent required (i) to comply with the order of a court or other governmental body, or
as otherwise necessary to comply with applicable Law, provided that, to the extent permitted
by Law, the party making the disclosure pursuant to the order shall first have given written
notice to the other party; or (ii) to establish a party’s rights under this Agreement, including to
make required court filings. Each party’s obligations of non-disclosure with regard to
Confidential Information are effective as of the date such Confidential Information is first
disclosed to the receiving party and will expire 5 years thereafter; provided, however, with
respect to any Confidential Information that constitutes a trade secret (as determined under
applicable Law), such obligations of non-disclosure will survive the termination or expiration
of this Agreement for as long as such Confidential Information remains subject to trade
secret protection under applicable Law. For clarity, Confidential Information includes any
non-public terms of this Agreement, including terms pertaining to Fees, length of term,
support and service, and other business terms, and the Advantage IP. - Privacy Policy. Advantage complies with its privacy policy available at
advantagecomplete.ca/privacy (“Privacy Policy”), in providing the Services. The Privacy
Policy is subject to change as described therein. By accessing, using, and providing
information to or through the Services, Customer acknowledges that Customer has reviewed
and accepted the Privacy Policy, and Customer consents to all actions taken by Advantage
with respect to Customer’s information in compliance with the then-current version of the
Privacy Policy. For clarity, a change in the Privacy Policy will not be considered a
modification of these Terms for purposes of Section 17. - Intellectual Property Ownership; Feedback. As between Customer and Advantage, (a)
Advantage owns all right, title, and interest, including all intellectual property rights, in and to
the Services and Advantage IP, and (b) Customer owns all right, title, and interest, including
all intellectual property rights, in and to Customer Data. For clarity, nothing in this Agreement
grants any license or right to use any trademark or service mark of Advantage or Third Party
Products other than with the express written permission of Advantage or the Third Party
Products suppliers, as applicable. If Customer or any of Customer’s employees, contractors,
or agents sends or transmits any communications or materials to Advantage by mail, email,
telephone, or otherwise, suggesting or recommending changes to the Services, including,
without limitation, new features or functionality relating thereto, or any comments, questions,
suggestions, or the like (“Feedback”), Advantage is free to use such Feedback irrespective
of any other obligation or limitation between Customer and Advantage governing such
Feedback. All such Feedback is and will be treated as Confidential Information of Advantage.
Customer hereby assigns to Advantage on Customer’s behalf, and shall cause Customer’s
employees, contractors, and agents to assign, all right, title, and interest in, and Advantage is
free to use, without any attribution or compensation to Customer or any third party, any
ideas, know-how, concepts, techniques, or other intellectual property rights contained in the
Feedback, for any purpose whatsoever, although Advantage is not required to use any
Feedback. Upon the request of Advantage, Customer shall take commercially reasonable
steps to cause its employees, contractors and agents to make an assignment in writing of
any Feedback, and waive any moral rights in any Feedback. - Limited Warranty and Warranty Disclaimer.
(a) Customer Warranty. Customer warrants that Customer owns all right, title, and interest,
including all intellectual property rights, in and to Customer Data and that both the Customer
Data and Customer’s use of the Services are in compliance with the Acceptable Use Policy
and applicable Law.
(b) THE SERVICES ARE PROVIDED “AS IS” AND ADVANTAGE SPECIFICALLY
DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED,
STATUTORY, OR OTHERWISE. ADVANTAGE SPECIFICALLY DISCLAIMS ALL IMPLIED
WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES
ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ADVANTAGE
MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR
RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER’S OR ANY OTHER
PERSON’S OR ENTITY’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION,
ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY OF
CUSTOMER’S OR ANY THIRD PARTY’S SOFTWARE, SYSTEM, OR OTHER SERVICES,
OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR
FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. - Indemnification
(a) Advantage Indemnification.
(i) Advantage shall indemnify, defend, and hold harmless Customer from and against any
and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements,
interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable
legal fees (“Losses”), incurred by Customer resulting from any third party claim, suit, action,
or proceeding (“Third Party Claim”) that any use of the Services by the Customer or its
Authorized Users in accordance with this Agreement, infringes or misappropriates such third
party’s Canadian patents, copyrights, or trade secrets, provided that Customer promptly
notifies Advantage in writing of the Third Party Claim, cooperates with Advantage, and allows
Advantage sole authority to control the defence and settlement of such Third Party Claim.
(ii) If such a Third Party Claim is made or Advantage anticipates such a Third Party Claim will
be made, Customer agrees to permit Advantage, at Advantage’s sole discretion, to (A)
modify or replace the Services, or component or part thereof, to make it non-infringing, or (B)
obtain the right for Customer to continue use the Services. If Advantage determines that
neither alternative is reasonably available, Advantage may terminate this Agreement, in its
entirety or with respect to the affected component or part, effective immediately on written
notice to Customer.
(iii) THIS SECTION 13(a)(ii) SETS FORTH CUSTOMER’S SOLE REMEDIES AND
ADVANTAGE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED,
OR ALLEGED THIRD PARTY CLAIMS THAT USE OF THE SERVICES IN ACCORDANCE
WITH THIS AGREEMENT INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY
INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.
This Section 13(a) will not apply to the extent that any such Third Party Claim arises from
Customer Data or Third Party Products.
(b) Customer Indemnification. Customer shall indemnify, hold harmless, and, at Advantage’s
option, defend Advantage and its officers, directors, employees, agents, affiliates,
successors, and assigns from and against any and all Losses arising from or relating to any
Third Party Claim (i) that the Customer Data, or any use of the Customer Data in accordance
with this Agreement, infringes or misappropriates such third party’s intellectual property
rights; or (ii) based on Customer’s or any Authorized User’s negligence or wilful misconduct
or use of the Services in a manner not authorized by this Agreement; provided that Customer
may not settle any Third Party Claim against Advantage unless Advantage consents to such
settlement, and further provided that Advantage will have the right, at its option, to defend
itself and its officers, directors, employees, agents, affiliates, successors, and assigns from
and against any such Third Party Claim or to participate in the defence thereof by counsel of
its own choice at Customer’s cost.
(c) SOLE REMEDY. THIS SECTION 13 SETS FORTH CUSTOMER’S SOLE REMEDIES
AND ADVANTAGE’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL,
THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE,
MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY
RIGHTS OF ANY THIRD PARTY. - LIMITATIONS OF LIABILITY. IN NO EVENT WILL ADVANTAGE BE LIABLE UNDER OR
IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE
THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY, OR OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL,
INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b)
INCREASED COSTS, DIMINUTION IN VALUE OR LOST BUSINESS, PRODUCTION,
REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE,
INABILITY TO USE, LOSS, INTERRUPTION, DELAY, OR RECOVERY OF ANY DATA, OR
BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS
OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER ADVANTAGE WAS
ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES
OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ADVANTAGE’S
AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER
ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT
(INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHERWISE EXCEED THE TOTAL
AMOUNTS PAID BY CUSTOMER TO ADVANTAGE UNDER THIS AGREEMENT IN THE
SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. - Term and Termination.
(a) Term. Unless expressly modified in the Subscription, this Agreement begins on the
Effective Date specified in the Subscription and continues for 24 months from the Term Start
Date unless earlier terminated in accordance with this Section 15 or as otherwise specified in
the Subscription (the “Initial Term”). Unless modified by the Subscription, this Agreement
and the Services shall automatically renew for successive 12 month terms (each a “Renewal
Term”, and together with the Initial Term, the “Term”) unless earlier terminated pursuant to
the express provisions set out in this Agreement, or if either party gives the other party
written notice of non-renewal at least 60 days prior to the expiration of the Initial Term or
Renewal Term, as applicable.
(b) Termination. In addition to any other express termination right set forth in this Agreement:
(i) Advantage may terminate this Agreement, for any reason upon 90 days’ advance written
notice to Customer notwithstanding any remaining Term.
(ii)Customer may terminate this Agreement for any reason following an amendment of these
Terms in accordance with Section 17 within 90 days’ of Advantage delivering the notice of
amendment to Customer.
(iii) Either party may terminate this Agreement, effective on written notice to the other party, if
the other party breaches this Agreement, and such breach: (A) is incapable of cure; or (B)
being capable of cure, remains uncured 30 days after the non-breaching party provides the
breaching party with written notice of such breach.
(iv) Either party may terminate this Agreement, effective immediately upon written notice to
the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails
to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary
or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any
proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks
to make a general assignment for the benefit of its creditors; or (D) applies for or has
appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of
competent jurisdiction to take charge of or sell any material portion of its property or
business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of this
Agreement, Advantage’s obligation to provide the Services will immediately cease and
Advantage may delete all Customer Data in its possession or control. Customer shall, and
shall cause all Authorized Users, to immediately discontinue use of the Services and the
Advantage IP, to uninstall downloaded software components of the Services and return to
Advantage or destroy all Advantage IP in its or their possession. No termination of this
Agreement will affect Customer’s obligation to pay all Fees that may have become due
before such expiration or termination or other amounts due and payable under this
Agreement, or entitle Customer to any refund.
(d) Survival. This Section 15(d) (Survival), and Sections 9 (Confidentiality), 11 (Intellectual
Property Ownership; Feedback), 13 (Indemnification), 14 (Limitation of Liability), 18 (Dispute
Resolution) and any provision, right, obligation, or required performance of the parties in this
Agreement which, by its nature, express terms or context is intended to survive termination
or expiration of this Agreement, will survive any such termination or expiration. - Equitable Relief. Each party acknowledges and agrees that a breach or threatened
breach by such party of any of its obligations under Section 9 (Confidentiality) or 11
(Intellectual Property Ownership; Feedback), would cause the other party irreparable harm
for which monetary damages would not be an adequate remedy and agrees that, in the
event of such breach or threatened breach, the other party will be entitled to equitable relief,
including a restraining order, an injunction, specific performance, and any other relief that
may be available from any court, without any requirement to post a bond or other security, or
to prove actual damages or that monetary damages are not an adequate remedy. Such
remedies are not exclusive and are in addition to all other remedies that may be available at
Law, in equity or otherwise. - Modifications. Customer acknowledges and agrees that Advantage has the right, in its
sole discretion, to modify these Terms from time to time, and that modified Terms become
effective on posting. Customer will be notified of modifications through direct email and/or
other written communication from Advantage to Customer’s Internal Business Operations
address. Customer is responsible for reviewing and becoming familiar with any such
modifications. Customer’s continued use of the Services after the effective date of the
modifications will be deemed acceptance of the modified Terms. Advantage will provide at
least 90 days’ advance notice of changes to any service level that Advantage reasonably
anticipates may result in a material reduction in quality or services. - Dispute Resolution. If any dispute or controversy arises between Customer and
Advantage relating to or arising from this Agreement, the Services, or the relationship
between Customer and Advantage (a “Dispute”), the Dispute will be resolved in accordance
with this Section 18.
CUSTOMER AND ADVANTAGE HEREBY EXPRESSLY WAIVE THE RIGHT TO ANY TRIAL
BY JURY AND THE RIGHT TO PARTICIPATE IN A CLASS ACTION IN ANY MANNER.
CUSTOMER AND ADVANTAGE EACH AGREE THAT CLAIMS WILL ONLY BE BROUGHT
IN CUSTOMER’S AND ADVANTAGE’S INDIVIDUAL CAPACITIES AND NEITHER OF
CUSTOMER NOR ADVANTAGE WILL BRING A CLAIM AS A PART OF A CLASS,
WHETHER AS LEAD PLAINTIFF, MEMBER, REPRESENTATIVE, OR OTHERWISE.
(a) Negotiation. Before resorting to arbitration, each of Customer and Advantage will attempt
to resolve the Dispute through negotiation, which negotiation may be conducted
electronically or virtually. The complaining party (the “Complainant”) will first provide the other
party (the “Respondent”) with a written notice of the dispute (a “Notice of Dispute”). The
Notice of Dispute will include (i) the full legal name and contact information of the
Complainant, (ii) describe the nature and basis of the claim or dispute in detail, and (iii) set
out the specific relief that the Complainant is seeking. If Advantage is the Complainant,
Advantage will send any Notice of Dispute to Customer’s Internal Business Operations
address and to the last email address that Customer provided to Advantage. If Customer is
the complainant, Customer will send the Notice of Dispute to the address of Advantage’s
headquarters, which can be found on the Website, prepaid, by registered mail or nationally
recognized courier, with proof of receipt requested. The effective date of the Notice of
Dispute will be the day that Advantage receives it, if sent to Advantage, or the day that
Advantage sends it by email if sent to Customer.
(b) Binding Arbitration. If Customer and Advantage are unable to come to a negotiated
agreement within 30 days of the effective date of the Notice of Dispute, the Dispute will be
finally and conclusively resolved by binding arbitration under the Arbitration Rules of the ADR
Institute of Canada. The seat of arbitration will be London, Ontario, Canada and the
arbitration may be conducted virtually at the request of either party. The language of the
arbitration will be English. The arbitrator will be selected in accordance with the Arbitration
Rules, and will be a former judge of Ontario or a senior lawyer licensed to practice law in
Ontario and experienced in commercial disputes. There will be no appeal from the decision
of an arbitrator except on a question of law. Costs of the arbitrator shall be determined by the
arbitrator consistently with costs practice in the Superior Court of Justice in Ontario.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, EACH ARBITRATION SHALL BE
INDIVIDUALLY BETWEEN TWO PARTIES AT A TIME, AND NO ARBITRATIONS SHALL BE
COMBINED SO AS TO FORM A CLASS ARBITRATION.
(c). Enforceability/Law. Any question that must be put to a court pertaining to a Dispute shall
be put to the courts of Ontario located in London, Ontario. If this Section 18 is found to be
unenforceable in whole or in part, then the exclusive jurisdiction and venue provisions of
Sections 20 and 21 shall govern. Any party may obtain an order reflecting a decision or order
of the arbitrator in any court of competent jurisdiction.
(d). Limitation Period. Customer may not initiate a Dispute that is based upon facts or events
that commenced more than one (1) year prior to such time. - Relationship of Parties. Advantage, in providing the Services is acting as an
independent contractor. Advantage does not undertake by this Agreement or otherwise to
perform any obligations of Customer, whether regulatory or contractual, or to assume any
responsibility for Customer’s business or operations. - Governing Law. This Agreement, and all matters arising out of or relating to this
Agreement including without limitation these Terms, the Subscription and the Services,
whether sounding in contract, tort, or statute, are governed by, and construed in accordance
with, the laws of the Province of Ontario and the federal laws of Canada applicable therein,
without giving effect to any choice or conflict of law provision or rule (whether of the Province
of Ontario or any other jurisdiction) that would cause the application of the laws of any
jurisdiction other than those of the Province of Ontario. - Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever
in any way arising out of, from, or relating to this Agreement and the Services, including all
statements of work, exhibits, schedules, attachments, and appendices referenced in this
Agreement, the services provided hereunder, and all contemplated transactions, that is not
resolved in accordance with Section 18, shall be instituted in the courts of the Province of
Ontario located in London, Ontario, and each party irrevocably submits to the exclusive
jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of
process, summons, notice, or other document by mail to such party’s address shall be
effective service of process for any suit, action, litigation, or other proceeding brought in any
such court. The service address for Advantage will be the address of Advantage’s
headquarters which can be found on the Website and the service address for Customer will
be Customer’s Internal Business Operations address. Each party agrees that a final
judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced
in other jurisdictions by suit on the judgment or in any other manner provided by law. The
parties irrevocably and unconditionally waive any objection to the venue of any action or
proceeding in such courts and irrevocably waive and agree not to plead or claim in any such
court that any such action or proceeding brought in any such court has been brought in an
inconvenient forum. - Force Majeure. In no event shall either party be liable to the other party, or be deemed
to have breached this Agreement, for any failure or delay in performing its obligations under
this Agreement (except for any obligations to make payments), if and to the extent such
failure or delay is caused by any circumstances beyond such party’s reasonable control,
including but not limited to acts of God, epidemics, pandemics, including the 2019 novel
coronavirus disease (COVID-19) pandemic, flood, fire, earthquake, explosion, war, terrorism,
invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial
disturbances, or passage of law or any action taken by a governmental or public authority,
including imposing an embargo. - Severability. If any provision of this Agreement is found invalid, illegal or unenforceable
in any jurisdiction, such invalidity, illegality or unenforceability shall be severed only to the
extent of the invalidity, illegality or unenforceability so as to retain, to the maximum extent
possible, the intent of the parties as reflected in the term or provisions as drafted, and shall
not affect any other term or provision of this Agreement or invalidate or render unenforceable
such term or provision in any other jurisdiction. - Further Assurances. Customer shall, and shall cause its affiliates and Authorized Users,
to, from time to time at the request of Advantage, furnish Advantage with such further
information or assurances, execute and deliver such additional documents, instruments and
conveyances, and take such other actions and do such other things, as may be reasonably
necessary or appropriate to carry out the provisions of this Agreement. - Miscellaneous. This Agreement constitutes the entire agreement and understanding
between Customer and Advantage with respect to the subject matter hereof and supersedes
all prior and contemporaneous understandings, agreements, representations, and
warranties, both written and oral, with respect to such subject matter. The parties do not
confer any legal, equitable or other rights or remedies of any nature whatsoever under or by
reason of this Agreement upon any person other than the parties to this Agreement and their
respective successors and permitted assigns. Words importing the singular number shall
include the plural and vice versa, words importing the masculine gender shall include the
feminine and neuter genders and vice versa. The words “include”, “includes” and “including”
shall be deemed to be followed by the words “without limitation”. The words “herein”,
“hereof”, “hereby”, “hereto” and “hereunder” refer to this Agreement as a whole. This
Agreement shall be construed without regard to any presumption or rule requiring
construction or interpretation against the party drafting an instrument or causing any
instrument to be drafted. Any notices to Advantage must be in writing and sent to
Advantage’s corporate headquarters address available on its Website and must be delivered
either in person, by certified or registered mail, return receipt requested and postage prepaid,
or by recognized overnight courier service, and are deemed given upon receipt by
Advantage. The Customer’s address will be its Internal Business Operations address.
Notwithstanding the foregoing, Customer hereby consents to receiving electronic
communications from Advantage. These electronic communications may include notices
about applicable fees and charges, transactional information, and other information
concerning or related to the Services. Customer agrees that any notices, agreements,
disclosures, or other communications that Advantage sends to Customer electronically will
satisfy any legal communication requirements, including that such communications be in
writing. Any failure to act by Advantage with respect to a breach of these Terms and this
Agreement by Customer or others does not constitute a waiver and will not limit Advantage
rights with respect to such breach or any subsequent breaches. This Agreement is personal
to Customer and may not be assigned or transferred for any reason whatsoever without
Advantage prior written consent and any action or conduct in violation of the foregoing will be
void and without effect. Advantage expressly reserves the right to assign this Agreement and
to delegate or transfer any of its obligations hereunder.