CaseWare Cloud Services Agreement
This agreement ("Agreement") is a legal agreement between:
CaseWare Cloud Ltd., an Ontario Corporation whose principal place of business is at 1 Toronto Street, Suite 1400, Toronto, ON M5C 2V6, Canada. ("CWC"); and
COMPANY NAME whose principal place of business is at ADDRESS, CITY, STATE, COUNTRY, ZIP ("Customer");
BY ACCESSING OR USING CLOUD SERVICES (AS DEFINED HEREIN) PROVIDED BY CWC IN ANY MANNER, CUSTOMER IS "ACCEPTING" AND AGREEING TO BE BOUND BY THESE TERMS OF SERVICE TO THE EXCLUSION OF ALL OTHER TERMS.
IF CUSTOMER DOES NOT UNCONDITIONALLY ACCEPT THESE TERMS IN THEIR ENTIRETY, CUSTOMER SHALL NOT (AND SHALL HAVE NO RIGHT TO) ACCESS OR USE CASEWARE CLOUD SERVICES.
1.1 In this Agreement, the following terms shall have the following meanings:
"Affiliate" means a corporation that controls, is controlled by, or is under common control with, a Party;
"CaseWare Cloud App" means content, algorithms and instructions offered by way of the Internet in conjunction with other CaseWare Cloud Services which increase the ease and efficiency of Use of CaseWare Cloud Services and/or assist Subscribers of CaseWare Cloud Services to adapt use of CaseWare Cloud Services to the Subscribers' particular needs and all enhancements, modifications, adaptations, translations thereof and derivations there from whether in tangible form or not.
"CaseWare Cloud Services" means those Cloud Services offered by CWC to Subscribers, during the Term, including the CaseWare Cloud Apps;
"CaseWare SLA" means a software service level agreement entered into between Customer and CWC;
"Cloud Infrastructure" means those computing devices, including servers, networking equipment, data storage devices, and associated software used in the provision of the Cloud Services;
"Cloud Services" means computing resources provided by way of the Internet and may include the provision of storage, software, platform, computing services or other resources.
"Cloud Subscription Term" means the applicable term Cloud Services are to be provided by CWC, as specified on an Invoice;
"Collateral Program" means a computer program intended to operate in conjunction with or provide data to or receive data from the CaseWare Cloud Services;
"Documentation" means operating instruction for the CaseWare Cloud Services as made available by CWC, as may be updated from time to time;
"Enhancement" means any modification to the CaseWare Cloud Services other than correction of bugs or errors acknowledged by CWC;
"Intellectual Property Rights" means any proprietary right anywhere in the world, provided under (i) patent law, (ii) copyright law, (iii) trademark law, (iv) design patent or industrial design law, (v) semi-conductor chip or mask work law, (vi) any other statutory provision or common law principle applicable to computer software which may provide a right in either (a) ideas, formulae, algorithms, concepts, inventions or know-how including trade secret law or (b) the expression of such ideas, formulae, algorithms, concepts, inventions or know-how;
"Internet" means a global wide area network that connects computer systems across the world;
"Invoice" means an itemized bill of services to be provided by CWC to Customer, that identifies CaseWare Cloud Services to be paid for by Customer, and any applicable fees, and term;
"Party" shall mean either CWC or Customer, and "Parties" shall mean both CWC and Customer;
"Permitted User" means those individuals associated with Customer who are authorized by Customer to access and Use the CaseWare Cloud Services;
"Personal Information" means information about an identifiable individual;
"Security Policy" means the security policy adhered to by CWC in provision of the CaseWare Cloud Services, as published and updated from time to time on CWC's Website;
"Subscriber" means Customer, when authorized to Use CaseWare Cloud Services, pursuant to this Agreement.
"Subscriber Data" means data input by a Permitted User into the CaseWare Cloud Services, or data prepared for Subscriber by the CaseWare Cloud Services.
"Territory" means the country or territory in which the user is licensed, as specified in an Invoice.
"Use" means accessing, entering data to be processed and/or causing a computer program to process data and/or causing a computer program to generate a report or other output in electronic or physical form.
2. RIGHTS OF USE. TERMS AND CONDITION.
2.1 Subject to the terms and conditions set out herein, CWC shall make available to Customer, CaseWare Cloud Services, as identified in an Invoice.
2.2 CaseWare Cloud Services may be accessed by Permitted Users by way of the Internet, using a valid credentials registered with CWC (user ID and password), from a computing device in a manner described in the Documentation for the language version of the licensed software, in the Territory. Each Permitted User shall register with CWC to obtain valid credentials for accessing the CaseWare Cloud Services.
2.3 CWC's provision of CaseWare Cloud Services to Customer is personal, non-transferrable, and non-exclusive, and nothing in this Agreement shall prevent CWC from providing CaseWare Cloud Services to others.
2.4 Customer and Permitted Users must use the CaseWare Cloud Services in accordance with the Agreement solely for Customer's own internal business purposes. Customer may not resell or make available the CaseWare Cloud Services to any third party, or otherwise commercially exploit the CaseWare Cloud Services.
2.5 When accessing the CaseWare Cloud Services, Customer agrees (and will cause Permitted Users to agree) to:
properly identify Customer (and Permitted Users) using user credentials registered with CWC;
not misrepresent Customer's (and Permitted Users') identity or authorization to act on behalf of others;
not use, misuse or otherwise access the CaseWare Cloud Services or Cloud Services provided by CWC in any way which may impair the functionality of the Cloud Services or impair the ability of other users to use Cloud Services provided by CWC or impair the ability of CWC to deliver Cloud Services to others;
not attempt to view, access or copy any material or data other than that to which Customer has been authorized to access;
not extract data or store data output by CaseWare Cloud Services other than as required in Customer's ordinary course of business;
not to capture, in bulk, data output by CaseWare Cloud Services solely for display;
correctly identify the sender of all electronic transmissions sent through the CaseWare Cloud Services;
not modify the CaseWare Cloud Services as provided by CWC in any way;
not use the CaseWare Cloud Services in a manner to transmit, input or store any data that breaches any third party right (including Intellectual Property Rights and privacy rights) or that is objectionable, incorrect or misleading;
not disassemble, decompile, copy, reverse engineer, translate or make derivative works of any software used in the Cloud Infrastructure;
use CaseWare Cloud Services for lawful purposes only, and in accordance with any applicable legislation or administrative rule; and
2.6 Customer further agrees not to attempt to compromise the functionality, security or integrity of the Cloud Infrastructure, or assist others in so doing. Customer also agrees to reasonably assist CWC in preventing unauthorized access to Cloud Services provided by CWC.
3. CWC RESPONSIBILITIES
3.1 CWC shall use reasonable efforts to provide the CaseWare Cloud Services in accordance with this Agreement and Canadian law exercising reasonable care, and using suitable personnel. CWC may update the CaseWare Cloud Services from time to time, in its sole discretion. CWC may provide CaseWare Cloud Services from anywhere in the world and may transfer provision of the Cloud Services from one location to another. CWC shall have no obligation to provide Customer other Cloud Services.
3.2 CWC may temporarily suspend Customer's access to the CaseWare Cloud Services in the event that a fee therefor has not been timely paid; if there is a suspected breach of any of Customer's obligations hereunder; or if continued use of the CaseWare Cloud Services may result in harm to data, the Cloud Services, or to other users.
4. CLOUD SERVICES FUNCTIONALITY
4.1 CWC warrants to Customer subject to the limitations and conditions contained herein that the CaseWare Cloud Services, if used as directed in the Documentation, will materially function as described in the Documentation.
4.2 CWC shall provide to Customer support and maintenance services as set out in the CaseWare SLA.
4.3 Nevertheless, Customer's use of the CaseWare Cloud Services is at Customer's sole risk and the CaseWare Cloud Services are provided on an "as is" and "as available" basis without any further warranty, condition, or representation, express, implied or statutory.
4.4 CWC does not represent or warrant, and disclaims any representation, condition or warranty that:
the CaseWare Cloud Services will meet Customer's requirements;
provision of the CaseWare Cloud Services will be continuous, timely, secure or uninterrupted;
data (including Subscriber Data) will not be lost or altered by reason of defect in the Cloud Services or Cloud Infrastructure, as made available by CWC, its subcontractors or designees, whether by reason of negligence or not;
the CaseWare Cloud Services will be error free;
errors resulting from use of the CaseWare Cloud Services will be corrected to Customer's satisfaction;
the CaseWare Cloud Services will accept data from, provide data to, or otherwise operate in conjunction with any Collateral Program; and
the security measures used in the provision of the CaseWare Cloud Services will meet Customer's requirements.
4.5 The limited functionality warranty provided in Section 4.1 shall terminate immediately if the CaseWare Cloud Services are used in a manner contrary to this Agreement, or for a purpose not set out in the Documentation, or in conjunction with computer hardware or computer software other than the unmodified version of computer hardware and computer software recommended by CWC in the Documentation.
4.6 CWC's sole liability for any breach of this limited functionality warranty shall be, in CWC's sole discretion to advise Customer how to achieve substantially the same functionality with CaseWare Cloud Services as described in the Documentation through a procedure different from that set forth in the Documentation; or to terminate this Agreement and refund Cloud Services fees paid by Customer for the calendar month in which CWC receives written notice particularizing that the CaseWare Cloud Services do not function materially in accordance with the Documentation.
5.1 Customer agrees to pay all fees for CaseWare Cloud Services, on the terms set out on any applicable Invoice.
5.2 Customer is responsible for paying all taxes associated with Customer's subscription to CaseWare Cloud Services. If Customer is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, CWC receives an amount equal to the sum set out on the Invoice, as CWC would have received had no such deduction or withholding been made.
6. SUBSCRIBER DATA AND PERSONAL INFORMATION
6.1 By using the CaseWare Cloud Services, Subscriber Data may be stored by CWC or its designee or subcontractor for future retrieval and for processing to provide output to Customer, as detailed in the Documentation.
6.3 Customer, however, is wholly responsible for configuring Customer's use of the CaseWare Cloud Services to ensure adequate security, protection, and backup of Subscriber Data.
6.5 Customer shall obtain any necessary consent and rights from persons to provide, store or access Subscriber Data (including Personal Information therein) in the Cloud Infrastructure, and to allow CWC or its designee or subcontractor to do so, including any required consents and permissions from those whose personal information or other data Customer will be hosting using the CaseWare Cloud Services, in accordance with applicable laws.
6.6 CWC will use Subscriber Data (including Personal Information therein) only to provide the Cloud Services. Such use may include improving the CaseWare Cloud Services; troubleshooting to prevent, find, and fix problems with the operation of the CaseWare Cloud Services. CWC will not use Subscriber Data provided by Customer for any other commercial purposes without Customer's consent.
6.7 Other than as set out in Section 6.8, CWC will not disclose Subscriber Data to a third party except with Customer's consent, unless required to do so by law. Should a third party contact CWC with a demand for Subscriber Data, CWC will attempt to redirect the third party directly to Customer. CWC may provide Customer's contact information to the third party. Prior to any disclosure of the Subscriber Data pursuant to any demand, CWC will promptly notify Customer and provide a copy of the demand, unless legally prohibited from doing so and cooperate with Customer (at Customer's expense) in protecting against or limiting any such disclosure and/or obtaining a protective order, confidential treatment and/or any other remedy narrowing the scope of the required or compelled disclosure and protecting its confidentiality. Customer is responsible for responding to requests by third parties regarding Customer's use of the CaseWare Cloud Services, such as requests to take down content.
6.9 CWC shall comply with all laws in Canada applicable to the provision of the CaseWare Cloud Services, including applicable laws that require the notification of breaches to data security or disclosure of Subscriber Data, but not including any laws applicable to Customer or Customer's industry that are not generally applicable to information technology services providers. Customer will comply with all laws applicable to your use of the CaseWare Cloud Services, including any laws applicable to you or your industry.
7 TERM AND TERMINATION
7.1 The term of this Agreement shall commence on the earlier of the date of the Invoice, the date of acceptance of this Agreement, and the day you first access the CaseWare Cloud Services, and shall continue for the Cloud Subscription Term, unless terminated as set out herein.
7.2 This Agreement may be terminated by CWC a) upon notice of Customer's breach of the terms hereof; b) upon Customer's failure to pay a fee as specified on the Invoice associated with the CaseWare Cloud Services, where such failure is not cured within 30 day of notice; c) if Customer becomes insolvent or files, or consents to, a petition in bankruptcy or is adjudicated bankrupt or insolvent or makes an assignment for the benefit of creditors or an arrangement pursuant to any law regarding bankruptcy or the rights of creditors or discontinues or dissolves Customer's business or if a receiver is appointed with respect to Customer's business or assets; or d) upon 60 days written notice.
7.3 Customer may terminate this Agreement upon 60 days written notice to CWC
7.4 Upon termination of this Agreement by CWC any remaining fees payable during the Subscription Term shall become payable by Customer immediately. CWC shall cease providing the CaseWare Cloud Services, and will cease providing access to the CaseWare Cloud Services. Upon termination, CWC shall have no obligation to maintain Subscriber Data, and may arrange for the immediate deletion of Subscriber Data associated with the CaseWare Cloud Services as provided to Customer. CWC will nevertheless provide Customer not less than 30 days' notice either through email or CaseWare Cloud Services notifications where CWC has terminated the Agreement.
8.1 THE EXPRESS WARRANTIES AND REPRESENTATION SET FORTH IN SECTION 4 OF THIS AGREEMENT ARE ACCEPTED BY CUSTOMER AND ALL PERMITTED USERS OF THE CLOUD SERVICES IN LIEU OF ANY OTHER WARRANTIES AND REPRESENTATIONS, AND CUSTOMER WAIVES AND CWC DISCLAIMS ANY AND ALL OTHER WARRANTIES, CONDITIONS, OR REPRESENTATIONS (EXPRESS OR IMPLIED, ORAL OR WRITTEN), WITH RESPECT TO THE CASEWARE CLOUD SERVICES, AND THE DOCUMENTATION INCLUDING ANY AND ALL IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, OR FITNESS OR SUITABILITY FOR ANY PURPOSE (WHETHER OR NOT CWC OR ITS AFFILIATES KNOW, HAVE REASON TO KNOW, HAVE BEEN ADVISED, OR ARE OTHERWISE IN FACT AWARE OF ANY SUCH PURPOSE), WHETHER ALLEGED TO ARISE BY LAW, BY REASON OF CUSTOM OR USAGE IN THE TRADE, OR BY COURSE OF DEALING OR HOWSOEVER OTHERWISE ARISING.
8.2 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (TORT, CONTRACT, OR OTHERWISE) SHALL CWC, ITS AFFILIATES OR ANYONE ELSE WHO HAS BEEN INVOLVED IN THE CREATION, PRODUCTION OR DELIVERY OF CASEWARE CLOUD SERVICES BE LIABLE TO CUSTOMER OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY CHARACTER INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF GOODWILL, WORK STOPPAGE, COMPUTER FAILURE OR MALFUNCTION, DISCLOSURE OF INFORMATION OR DATA, LOSS OF DATA, OR ANY AND ALL COMMERCIAL DAMAGES OR LOSSES, OR FOR ANY DAMAGES IN EXCESS OF CWC'S LIST PRICE FOR ONE MONTH'S USE OF THE CASEWARE CLOUD SERVICES, EVEN IF CWC OR AN AFFILIATE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY. IN PARTICULAR, WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, NEITHER CWC, ITS AFFILIATES NOR ANY OF THEIR OFFICERS, DIRECTORS, EMPLOYEES OR AGENTS SHALL BE LIABLE TO CUSTOMER OR ANY THIRD PARTY ON ACCOUNT OF LOSSES OR DAMAGES SUFFERED AS A RESULT OF FINANCIAL STATEMENTS OR OTHER RECORDS PREPARED IN WHOLE OR IN PART WITH THE CASEWARE CLOUD SERVICES BEING INACCURATE OR NOT CONFORMING TO GENERALLY ACCEPTED ACCOUNTING PRINCIPLES, HOWSOEVER ARISING.
9 INTELLECTUAL PROPERTY
9.1 As between Customer and CWC, Customer acknowledges that CWC shall own all Intellectual Property Rights in and related to the CaseWare Cloud Services and Documentation, including any trademarks used in association with the CaseWare Cloud Services. Customer agrees not to assert any rights, or claim to rights (including any Intellectual Property Rights) in any Cloud Services provided by CWC and Documentation.
9.2 Notwithstanding the foregoing, CWC makes no claim to any Intellectual Property Rights in or to Customer's Subscriber Data.
9.3 Customer will not, directly or indirectly challenge, limit, jeopardize or interfere with CWC's ownership of and title in and to all Intellectual Property Rights relating to Cloud Services, nor will Customer directly or indirectly challenge the validity of such rights, or permit or assist any person to do any of the foregoing.
10.1 This Agreement shall be governed by and construed under the law applicable to agreements between residents of the Province of Ontario, Canada entered into and to be performed within Ontario, Canada (excluding any choice of law).
10.3 Headings are for reference purposes only and shall not affect the construction or interpretation of this Agreement.
10.4 This Agreement and the rights and obligations hereunder, may not be assigned in whole or in part by Customer without the prior written consent of CWC. Rights and obligations of CWC may be assigned to another entity in connection with a reorganization, merger, sale, consolidation, acquisition or other restructuring involving all or substantially all of the voting securities and/or assets of CWC and, in addition, rights and obligations of CWC hereunder may be assigned to any third party that acquires a substantial part of CWC's assets related to the CaseWare Cloud Services.
10.5 If any provision of this Agreement is held to be unenforceable for any reason, such provision shall be reformed only to the extent necessary to make it enforceable and the balance of the Agreement shall remain valid and enforceable according to its terms.
10.6 No delay or failure in exercising any right hereunder and no partial or single exercise thereof shall be deemed to constitute a waiver of such right or any other rights hereunder. No consent to a breach of any express or implied term of this Agreement shall constitute consent or acquiescence to any prior or subsequent breach.
10.7 Customer shall at all times during the term of this Agreement and thereafter indemnify, defend, and hold CWC, its directors, officers, employees, and Affiliates harmless against all claims, proceedings, demands, and liabilities of any kind whatsoever, including legal expenses and reasonable attorneys' fees, made by third parties arising out of, or related to Customer's use of or access to CaseWare Cloud Services to prepare financial documents for third parties.
10.8 Any dispute, controversy or claim arising out of or relating to this Agreement including any question regarding its existence, interpretation, validity, breach or termination or the business relationship created by it (whether in contract, tort, or otherwise, whether preexisting, present or future, including statutory, common law, intentional tort and equitable claims capable in law of being submitted to binding arbitration) against CWC, its agent, employees, officers, directors, successors, assigns, or Affiliates, shall be referred to and finally resolved by arbitration under the Canadian Arbitration Association Arbitration Rules. The place of the arbitration shall be Toronto, Ontario, Canada.
10.9 Customer and CWC agree that each may bring claims against the other only in their individual capacity and not as a plaintiff or class member in any purported class or representative proceeding. Unless Customer and CWC agree, no arbitrator or judge shall consolidate more than one person's claims or otherwise preside over any form of a representative or class proceeding.
10.10 Export control laws and regulations of relevant jurisdictions may apply to the CaseWare Cloud Services. Customer agrees to comply with all relevant export control laws and regulations in Use of the CaseWare Cloud Services.
10.11 CWC shall not be responsible for any failure or delay in performance in relation to this Agreement if caused by: an act of war hostility, or sabotage; act of God; pandemic, outbreak or communicable disease; electrical, internet or telecommunication that is not caused by CWC; government restrictions; or any other event outside the reasonable control of CWC. CWC will use reasonable efforts to mitigate the effect of any such force majeure event. If such event continues for more than 30 days, CWC may suspend or cancel the provision of CaseWare Cloud Services. This section does not excuse or relieve Customer from Customer's obligation to pay for CaseWare Cloud Services that have been provided to Customer prior to any such force majeure event.