Pharonyx Master Subscription Agreement Last modified: April 27, 2018
This Pharonyx Master Subscription Agreement (the “Agreement”) governs your use of the Online Service (as defined below) provided by Pharonyx Technologies, Inc., a corporation incorporated in Canada and having a place of business at 10324 Boulevard St-Laurent, Montreal, Province of Quebec H3L 2P2 (“Pharonyx”) except to the extent you have executed a separate Supplementary Agreement (as defined below) governing your use of the Online Service. You are required to indicate your acknowledgement and consent to this Agreement in order to access and use the Online Service or the Application. By checking the appropriate box and clicking on the “Sign Up” button, you are acknowledging to the terms of this Agreement and are consenting to be bound by it.
If you agree to this Agreement on behalf and in the name of a legal entity such as a company, corporation, partnership, etc. (referred to as a “Business”), you represent and warrant that you have the power and authority to bind such Business to this Agreement. In such case, the term “Customer” refers to the Business.
IF, HOWEVER, YOU ARE UNWILLING TO AGREE TO THIS AGREEMENT OR DO NOT HAVE THE POWER AND AUTHORITY TO ACT ON BEHALF OF AND BIND THE BUSINESS, DO NOT CLICK ON THE BUTTON AND DO NOT ACCESS OR OTHERWISE USE THE ONLINE SERVICE.
The documents forming this Agreement are this document, Schedule A – Service Levels, the Order Forms, and any Supplementary Agreement (as the case may be), each and all of which are incorporated by reference into the Agreement and bind the Parties. Reference to a Schedule includes any appendices, if any.
INTENDING TO BE LEGALLY BOUND, THE PARTIES AGREE AS FOLLOWS:
1 Definitions and interpretation
1.1 Definitions. The following terms have the following meanings:
(a) “Account” means an individual or Business (depending on the case) K-Ops account.
(b) “Application” means the mobile applications developed by Pharonyx that are available on the Apple’s App Store, Google Play and Microsoft’s Windows Store application stores for download and installation on Users’ mobile devices to use the functionality of the Online Service. Download, installation and usage of the Application is governed by and subject to the terms of this Agreement in addition to other applicable license terms and conditions.
(c) “Authorized Users” means such Account holders (including, as the case may be, Customer) that have been authorized by the Project Owner to access, consult, use, and generate Project Data stored on the Online Service.
(d) “Confidential Information” has the meaning set out in Section 5.1.
(e) “Customer” means the physical person or Business accepting this Agreement.
(f) “Customer Data” means all data of Customer that is collected, stored, processed, transmitted and displayed using the Online Service and the Application. If Customer is a Project Owner, Customer Data includes the Project Data for such Project.
(g) “Disclosing Party” has the meaning set out in Section 5.1.
(h) “Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the Application and Online Service provided or made available by Pharonyx to Customer; provided, however, that Documentation specifically excludes any “community moderated” forums as provided or accessible through such knowledge base(s).
(i) “Effective Date” means the date on which Customer has accepted to be bound by this Agreement.
(j) “Feedback” has the meaning set out in Section 4.1.
(k) “Free Account” means a type of Account providing free (i.e. – non-paying) access and use of the Online Service. The rights, benefits and features associated with a Free Account may be limited compared to other Account types.
(l) “Online Service” means the K-Ops cloud-based web & mobile tool used for tracking and managing evidence of execution progress on construction projects as a service provided to the Customer on a subscription basis. The Online Service includes all underlying proprietary technology (software, hardware, algorithms, code, processes, user interfaces, know-how, techniques, templates, designs and other tangible or intangible technical material or information) of Pharonyx, its licensors and service providers. The Online Service also includes (a) system administration, hosting, system management, and system monitoring activities performed by Pharonyx in connection with the web interface and mobile Applications made available by Pharonyx and (b) associated technical support and software maintenance regarding the Online Service and the Applications.
(m) “Order Form” means the invoice issued by Pharonyx to confirm and document the description, quantity and prices for the Online Service purchased by Customer pursuant to this Agreement. Order Forms are deemed incorporated in this Agreement.
(n) “Pharonyx Access Codes” has the meaning set out in Section 2.5.
(o) “Pharonyx Parties” has the meaning set out in Section 4.1.
(p) “Project” means a construction project which documentation and data is managed using the Online Service.
(q) “Project Data” means all content and data about a Project, provided to Pharonyx by Authorized Users through the Online Service.
(r) “Project Owner” means an Account holder (including, as the case may be, Customer) that is registered the “owner” of a Project for the purposes of the Online Service.
(s) “Receiving Party” has the meaning set out in Section 5.1.
(t) “Subscription Term” has the meaning set out in Section 9.1.
(u) “Supplementary Agreement” means an agreement between Customer and Pharonyx providing supplementary terms and conditions governing the access and use by the Customer of the Online Service.
(v) “Taxes” has the meaning set out in Section 3.6.
(w) “Third Party Components” means software or services that are not part of the Online Service, that are delivered or performed by third parties independently of Pharonyx and that interoperate or integrate, at Customer’s demand, with the Online Service. Examples of Third Party Components are third party cloud storage services such as Google Drive, Dropbox, Box, etc. .
1.2 Documents Forming Agreement. The documents forming this Agreement are this document, the Order Form(s) and any Supplementary Agreement, all of which are incorporated by reference into the Agreement and bind the Parties. Reference to a Schedule includes any appendices thereto.
1.3 Order of Precedence. The provisions of a Supplementary Agreement will have precedence over any incompatible corresponding provision of this Agreement.
2 ONLINE SERVICE
2.1 Provision of Online Service. Pharonyx will host and make the Online Service and the Applications available to Customer pursuant to this Agreement during the Subscription Term. Pharonyx may update and modify the Online Service at any time but agrees that it will not make any changes to the Online Service during the Subscription Term that result in a material reduction of the performance, functionality, availability or security of the Online Service. Customer will benefit from the modifications and improvements that Pharonyx may bring to the Online Service during the Subscription Term. Customer may make additional purchases regarding the Online Service, such as to allow additional Authorized Users to use the Online Service, by executing additional Order Forms. The Subscription Term of such added Online Service components or features will be coterminous with the then-current Subscription Term as set forth in the Order Form. Customer acknowledges that Pharonyx has no delivery obligation and will not deliver copies of the software comprising the Online Service or the source code of the Applications to Customer pursuant to this Agreement.
2.2 Availability. Pharonyx will use commercially reasonable efforts to make the Online Service available with minimal downtime 24 hours a day, 7 days a week, in accordance with the service levels described in Schedule A; however, the following are excepted from availability commitments: (a) planned or unplanned (with regard to which Pharonyx will endeavor to provide at least 48hrs hours advance notice) maintenance downtime, or (b) any unavailability caused by circumstances described in Section 10.9, or (c) the unavailability or modification by third parties of Third Party Components.
2.3 Technical Support. Pharonyx will provide technical support to Customer in accordance with Pharonyx’s policies and the service levels set out in Schedule A.
2.4 Account. Customer (and each Authorized User) must have an Account to use the Online Service and is responsible for the information it provides to create the Account, its passwords for the Account, and for any use of its Account. If Customer becomes aware of any unauthorized use of its password or the Account, Customer will notify Pharonyx as promptly as possible. Customer must not allow access to, or use of, the Online Service by anyone that does not have a K-Ops account.
2.5 Customer Responsibilities. Customer agrees that it will not: (a) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time-share or otherwise commercially exploit the Online Service or make the Online Service available to any third party, other than to Authorized Users or as otherwise contemplated by this Agreement; (b) interfere with or disrupt the integrity or performance of the Online Service; (c) attempt to gain unauthorized access to the Online Service or its related systems or networks; (d) use or knowingly permit others to use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Online Service or the Application; (e) access the Online Service or the Applications for the purpose of building a similar or competitive product or service; (f) copy, translate, create a derivative work of, reverse engineer, reverse assemble, disassemble, or decompile the Online Service, the Applications or any part thereof or otherwise attempt to discover any source code or modify the Online Service or the Applications.
2.6 Use and Protection of Customer Data. While Pharonyx will maintain reasonable administrative, physical and technical safeguards for the protection of the confidentiality and integrity of Customer Data and will provide the Online Service in accordance with applicable laws and government regulations regarding personal information protection, as between Pharonyx and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. Customer represents and warrants that it has obtained all rights, permissions, and consents necessary to use and transfer the Customer Data within and outside of the country in which Customer is located in conjunction with Pharonyx provision of the Online Service (including providing adequate disclosures and obtaining legally sufficient consent from Customer’s employees, agents, contractors, suppliers, projects stakeholders and other persons whose personal information is or will be stored and processed through the use of the Online Service). Subject to this Agreement, including Pharonyx’s confidentiality obligations, Customer hereby grants Pharonyx a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform such acts with respect to the Customer Data as may be necessary for Pharonyx to provide the Online Service to Customer. Customer is solely responsible for managing the access and modification rights to the Project Data by the Authorized Users.
2.7 Third-Party Web Sites, Products and Online Service. The Online Service may rely on or require that Customer accesses Third Party Components. If Customer elects to use the Online Service with Third Party Components, Customer agrees that: (i) its use of Third Party Components must at all times comply with the terms of service governing such offerings, and (ii) Pharonyx has the right to export and import Customer Data to and from such Third Party Components for purposes of delivering the Online Service purchased by Customer. Customer’s use of Third Party Components must always comply with the terms of service or licensing terms governing such Third Party Components. Customer understands and agrees that the availability of the Online Service, or certain features and functions of the Online Service, may be dependent on the corresponding availability of Third Party Components or specific features and functions of Third Party Components. Pharonyx will not be liable to Customer or any third party if changes in Third Party Components cause the unavailability of the Online Service or any feature or function of the Online Service. Pharonyx does not make any representations or warranties regarding any such Third Party Components. To the extent that Pharonyx requires that Customer grant Pharonyx authorizations, passwords or other user credentials to a Third Party Component (“Pharonyx Access Codes“) to retrieve Customer Data or to enable interoperability with the Online Service, Customer will promptly provide such Pharonyx Access Codes. Pharonyx will not share, reassign, divulge or disclose any Pharonyx Access Codes except to Pharonyx employees or authorized contractors specifically engaged in the performance of the Online Service. Pharonyx Access Codes constitute Customer’s Confidential Information under this Agreement.
3 FEES AND PAYMENT TERMS
3.1 Fees. Customer agrees to pay all fees specified in the Order Forms using one of the payment methods Pharonyx supports. Customer agrees to pay Pharonyx in the currency specified in the Order Forms. Except as otherwise specified in this Agreement, (i) fees are based on the Online Service purchased, regardless of actual consumption, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) the purchased Online Service cannot be decreased during the relevant Subscription Term. All amounts payable under this Agreement will be paid without setoff or counterclaim, and without any deduction or withholding. Any refund by Pharonyx of fees payable by Customer under this Agreement will be done through a credit note applied on a subsequent invoice.
3.2 Invoices and Payment. The fees will be invoiced in advance and in accordance with the Order Forms. Except as otherwise provided in the Order Forms, Customer agrees to pay all invoiced amounts upon receipt of invoice.
3.3 Overdue Charges. If Pharonyx does not receive the payment of fees by the due date, then at Pharonyx’ discretion, such charges may accrue late interest at the rate of 15% per annum, calculated on a monthly basis on the outstanding balance, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
3.4 Suspension of Service. If any amounts owed by Customer hereunder are thirty (30) or more days overdue, Pharonyx may, without limiting Pharonyx’ other rights and remedies, suspend Customer’s and its Authorized Users’ and Users’ access to the Online Service until such amounts are paid in full.
3.5 Payment Disputes. Pharonyx agrees that it will not exercise its rights under Section 3.3 or 3.4 if the applicable charges are under reasonable and good-faith dispute and Customer is cooperating diligently to resolve the dispute.
3.6 Taxes. The amount of all fees specified in the Order Forms are exclusive of all taxes, assessments, tariffs, duties or other fees imposed, assessed or collected by or under the authority of any governmental body (collectively, “Taxes“) and Customer is solely responsible for the payment of all such Taxes arising from Pharonyx’ provision of the Online Service hereunder, except any taxes assessed on Pharonyx’ net income. If Pharonyx is required to directly pay, or Customer required to withhold, Taxes related to Customer’s use of the Online Service hereunder, Customer agrees to promptly reimburse Pharonyx for any amounts paid by Pharonyx or compensate Pharonyx for any amounts thus withheld.
4 PROPRIETARY RIGHTS
4.1 Online Service and Application. Pharonyx, its licensors and its service providers (together the “Pharonyx Parties“) own all right, title and interest in and to the Online Service and the Application, including all related intellectual property rights. Pharonyx reserves all rights not expressly granted to Customer under this Agreement. Neither Customer nor any Authorized User will delete or in any manner alter the copyright, trademark, and other proprietary notices of Pharonyx appearing on the Online Service, the Application or any portion thereof. Additionally, Pharonyx exclusively owns all right, title and interest in and to all suggestions, enhancement requests, recommendations or other feedback provided by Customer relating to the Online Service or the Application (“Feedback“), and Customer hereby assigns to Pharonyx all its right, title, and interest in and to the Feedback, including all intellectual property rights. At Pharonyx’ reasonable request and expense, Customer will execute necessary documents and take such further acts as Pharonyx may reasonably request to assist Pharonyx to acquire, perfect and maintain such Intellectual Property Rights in the Feedback.
4.2 Customer Data. As between Pharonyx and Customer, Customer exclusively owns all right, title and interest in and to all Customer Data. If Customer has an Authorized User role in relation to a Project, the Project Data produced by Customer will not be owned by Customer but by the Project Owner. Customer Data is deemed Confidential Information of Customer under this Agreement. Customer will obtain and maintain any required consents necessary to permit (a) Customer’s use of the Online Service and (b) accessing and processing of the Customer Data under this Agreement.
4.3 Statistical Information. Pharonyx may monitor Customer’s and the Authorized Users’ use of the Online Service and Applications and use the corresponding data in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of the Online Service or to support benchmarking or similar features of the Online Service. Customer agrees that Pharonyx may make such information publicly available, if such information does not incorporate any identifiable Customer Data and/or identify Customer, its Confidential Information or the Users without their consent. Pharonyx retains all intellectual property rights in such statistical and performance information.
5.1 Definitions. “Confidential Information” means all confidential or proprietary information of a party (the “Disclosing Party“) disclosed to the other party (the “Receiving Party“), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Without limiting the scope of this confidentiality undertaking, the parties acknowledge and agree that: (a) Customer Confidential Information includes the Customer Data; (b) Pharonyx Confidential Information includes the non-public elements of the Online Service and Application; and (c) Confidential Information of each party includes the terms and conditions of this Agreement, pricing and other terms set out in the Order Forms, as well as project-related information, project plans, budgets, financial information, technology, technical information, methods, processes, techniques, designs, computer programs and other business information disclosed by such party.
5.2 Treatment of Confidential Information. The Receiving Party must: (a) use the same degree of care to protect the confidentiality of the Disclosing Party’s Confidential Information that it uses to protect its own Confidential Information (but in no event less than reasonable care); and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party’s permission.
5.3 Exceptions. Confidential Information does not include information that: (i) is or becomes publicly available without a breach of any obligation owed to the Disclosing Party; (ii) is already known to the Receiving Party at the time of its disclosure by the Disclosing Party, without a breach of any obligation owed to the Disclosing Party; (iii) following its disclosure to the Receiving Party, is received by the Receiving Party from a third party without breach of any obligation owed to the Disclosing Party; or (iv) is independently developed by the Receiving Party without reference to or use of the Disclosing Party’s Confidential Information.
5.4 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent required by applicable law, regulation or legal process or to enforce its rights under this Agreement. The Receiving Party must, however: (i) provide the Disclosing Party with prompt written notice of the requirement to disclose, (ii) provide the Disclosing Party with reasonable assistance in the event the Disclosing Party wishes to oppose or contest such disclosure, and (iii) limit its disclosure to what is strictly required by law, regulation or legal process.
6 WARRANTIES; DISCLAIMERS
6.1 Warranties. Each party warrants that it has the legal authority to enter into this Agreement. Pharonyx warrants to Customer that the Online Service and Application will materially conform with the relevant Documentation.
6.2 Disclaimers. EXCEPT AS EXPRESSLY SET FORTH IN SECTION 6.1, THE PHARONYX PARTIES MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN CONNECTION WITH THIS AGREEMENT, THE ONLINE SERVICE OR THE APPLICATION. WITHOUT LIMITING THE FOREGOING, EXCEPT AS EXPRESSLY SET OUT IN SECTION 6.1, AND TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE PHARONYX PARTIES EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES. THE PHARONYX PARTIES DO NOT REPRESENT OR WARRANT THAT: (A) THE USE OF THE ONLINE SERVICE AND APPLICATION WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE ONLINE SERVICE AND APPLICATION WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE ONLINE SERVICE AND APPLICATION WILL BE ERROR-FREE OR THAT ALL ERRORS OR DEFECTS IN THE ONLINE SERVICE AND APPLICATION WILL BE CORRECTED; OR (F) THE ONLINE SERVICE, APPLICATION OR SERVER(S) THAT MAKE THE ONLINE SERVICE AND APPLICATION OPERATE ARE FREE OF MALWARE OR OTHER HARMFUL COMPONENTS. THE ONLINE SERVICE AND APPLICATION MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. THE PHARONYX PARTIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
7.1 Indemnification by Pharonyx. Pharonyx, at its expense, will defend and pay any settlement amounts and damages, costs and expenses (including reasonable attorneys’ fees) awarded by a court of final jurisdiction arising out of any third-party claim, suit or proceeding alleging that Customer’s use of the Online Service or the Application in accordance with this Agreement infringes a third party’s copyright or patent. The foregoing obligations do not apply with respect to a claim of infringement if such claim arises out of (i) Customer’s use of infringing Customer Data (ii) use of the Online Service in combination with any software, hardware, network or system not supplied by Pharonyx where the alleged infringement relates to such combination, (iii) any modification or alteration of the Online Service or Application other than by Pharonyx, (iv) Customer’s continued use of the Online Service or Application after Pharonyx notifies Customer to discontinue use because of an infringement claim, or (v) Customer’s violation of applicable law. If any claim which Pharonyx is obligated to defend has occurred, or in Pharonyx’s determination is likely to occur, Pharonyx may, in its sole discretion and at its option and expense (a) obtain for Customer the right to use the allegedly infringing item, (b) substitute a functionally equivalent, non-infringing replacement for such item, (c) modify such item to make it non-infringing and functionally equivalent, or (d) terminate this Agreement and refund to Customer any prepaid amounts attributable to the period of time between the date Customer was unable to use the Online Service due to such claim and the remaining days in the then-current Subscription Term.
7.2 Indemnification by Customer. Customer, at its expense, will defend and pay any settlement amounts or damages awarded by a court of final jurisdiction arising out of any third party claim, suit or proceeding (i) alleging that the Customer Data infringes any trade secret, trademark, copyright, or patent; (ii) arising from occurrence of the conditions set forth in Section 7.1(i)-(v) above or (iii) arising from Customer’s breach of its obligations hereunder.
7.3 Conditions. The parties’ obligations under this Section 7 are contingent upon the indemnified party (i) giving prompt written notice to the indemnifying party of any claim under this Section, (ii) giving the indemnifying party sole control of the defense or settlement of the claim, and (iii) cooperating in the investigation and defense of such claim(s). The indemnifying party must not settle or consent to judgment in any such claim that adversely affects the rights or interests of the indemnified party or imposes additional obligations on the indemnified party, without the prior express written consent of the indemnified party. The rights and remedies set forth in this Section 7 are the sole obligations of the indemnifying party and exclusive remedies available to the indemnified party in the event of an applicable third party claim.
8 LIMITATION OF LIABILITY
8.1 Limitation of Liability. EXCEPT AS SET FORTH IN SECTION 8.3 BELOW, IN NO EVENT WILL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER PURSUANT TO CONTRACTUAL OR EXTRACONTRACTUAL LIABILITY, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNT PAID TO PHARONYX BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO SUCH LIABILITY. THE FOREGOING DOES NOT LIMIT CUSTOMER’S PAYMENT OBLIGATIONS UNDER SECTION 3.
8.2 Exclusion of Consequential and Related Damages. EXCEPT AS SET OUT IN SECTION 8.3 BELOW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE ONLINE SERVICE, THE APPLICATION AND/OR THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE ONLINE SERVICE OR THE APPLICATION, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE ONLINE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE, EVEN IF PHARONYX AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE REASONABLY FORESEEN THEM.
8.3 Exceptions. THE LIMITATIONS AND EXCLUSIONS OF SECTIONS 8.1 AND 8.2 ABOVE DO NOT APPLY TO EITHER PARTY’S INDEMNIFICATION OBLIGATIONS.
9 TERM AND TERMINATION
9.1 Term of Subscription to Online Service. Customer’s right to use the Online Service begins on the start date specified in the Order Forms and continues for the period set out therein (each a “Subscription Term“). In case Customer’s accesses and use of the Online Service through a Free Account, the Subscription Term will be deemed unlimited (unless terminated pursuant to Section 9.2 or 9.3).
9.2 Termination for Convenience. This Agreement may be terminated for convenience by paying Customers by giving Pharonyx a written prior notice of such termination and paying Pharonyx all amounts then due. Customers holding Free Accounts may terminate this Agreement at any time by closing their Account. Finally, Pharonyx may also terminate the Agreement for convenience for Customers holding a Free Account by providing a 30-day prior notice to Customer.
9.3 Termination for Cause. This Agreement may be terminated by either party for cause as follows: (i) upon thirty (30) days written notice if the other party breaches or defaults under any material provision of this Agreement and does not cure such breach prior to the end of such thirty (30) day period, or (ii) effective immediately and without notice if the other party becomes insolvent or is the subject of a voluntary or involuntary petition in bankruptcy or of corporate reorganization or any similar relief or of an assignment for the benefit of creditors or appointment of a receiver for any reason or ceases to do business, or otherwise terminates its business operations, except as a result of an assignment permitted hereunder. Pharonyx may temporarily cease performance of its obligations during any Customer cure period.
9.4 Retrieval of Customer Data. In the event of termination of this Agreement and provided no amount is then owed to Pharonyx by Customer, Customer may request, up to 30 days after termination of this Agreement, the retrieval of the Customer Data and Pharonyx will make such data available for download by Customer in CSV format. Pharonyx will have no obligation after such period to maintain or provide any Customer Data and will thereafter, unless legally prohibited or as needed to resolve dispute en enforce agreements, delete the Customer Data in its systems or otherwise in its possession or under its control. Notwithstanding the preceding, if Customer is not a Project Owner, all Project Data provided by Customer will not be deleted and will remain within the Project Owner’s control.
9.5 Effect of Termination. Upon termination of this Agreement for any reason, Customer’s Account, including the right to access and use the Online Service and the Applications will cease and Customer will delete any Pharonyx proprietary material (such as the Applications) from its systems and devices. Except to the extent expressly provided to the contrary herein, Sections 2.3, and 4 through 10 will survive the termination of this Agreement.
10.1 Relationship. Pharonyx and Customer are independent contractors, and this Agreement does not create a partnership, joint venture, employment or agency relationship between the parties. This is a non-exclusive arrangement.
10.2 Entire Understanding; Modifications. This Agreement constitutes the entire agreement between the parties and supersede all prior and contemporaneous agreements, proposals or representations, oral or written, regarding the subject matter covered by this Agreement. To the extent of any conflict or inconsistency between the provisions of this Agreement and a Schedule, the terms of this Agreement will prevail unless the parties clearly indicate their intent to override the terms of this Agreement. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other ordering documentation will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void.
10.3 Waiver. No waiver of any breach of this Agreement, and no course of dealing between the parties, will be construed as a waiver of any subsequent breach of this Agreement.
10.4 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, the provision will be modified and interpreted by the court so as best to accomplish the intent of the original provision. The invalidity or unenforceability of any provision will not affect any of the other provisions of this Agreement.
10.5 Governing Law and Venue. This Agreement will be governed by and construed under the laws in force within the Province of Quebec, Canada, excluding its conflict of law rules. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to this Agreement. The courts located in Montreal, Province of Quebec, Canada will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement. Each party hereby irrevocably consents to the exclusive jurisdiction of such courts.
10.6 Publicity. After obtaining Customer’s written consent, Pharonyx may reference and use the name and trademarks of a Business Customer and may disclose the nature of the Online Service provided hereunder in Pharonyx business development and marketing efforts, including without limitation its web site.
10.7 Assignment. Unless in connection with the sale of all or substantially all of its business whether by sale, merger, operation of law or otherwise, no party may assign this Agreement to any third party without the prior written consent of the other party, such consent not to be unreasonably withheld. Any purported assignment in violation of this Section will be void. This Agreement binds and benefits the parties, their respective successors and permitted assigns. There are no third party beneficiaries to this Agreement.
10.8 Notices. Any notice, consent or other communication of a legal nature under the Agreement must be given in writing and delivered by certified mail or recognized overnight courier service, by hand, or by email. In Customer’s case, such communication will be made to the address registered in Customer’s Account and in Pharonyx’s case, such communication will be made to the following addresses: 10324 Boulevard St-Laurent, Montreal, Qc H3L 2P2 or firstname.lastname@example.org. Such notice, consent or other communication will be deemed to have been given and received on the day it is actually delivered (or if that day is not a business day, on the following business day), unless it is delivered after 4:30 p.m., in which case it will be deemed to have been given and received on the next business day. A party may, from time to time, designate another address by transmitting a notice to the other party in accordance with this Section 10.8.
10.9 Force Majeure. Except for performance of a payment obligation, no party will be liable under this Agreement for delays, failures to perform, damages, losses or destruction, or malfunction of any equipment, or any consequence thereof, caused or occasioned by, or due to fire, earthquake, flood, water, the elements, labor disputes or shortages, utility curtailments, power failures, explosions, civil disturbances, governmental actions, shortages of equipment or supplies, unavailability of transportation, acts or omissions of third parties, or any other cause beyond its reasonable control. If the force majeure event continues for more than thirty (30) calendar days, then either party may terminate the Agreement for convenience upon written notice to the other party.
1 Service Levels
1.1 Help Desk Response and Resolution Times.
Help desk response time and resolution of problems will be measured for service calls (telephone or email) placed by Customer to Pharonyx’s help desk each calendar month. Pharonyx’s response time to service calls to the help desk will be measured as the time between the reception of a call or email and the acknowledgement of its reception by Pharonyx during regular business hours (Monday to Friday, 9am to 5pm Eastern Time – GMT-5). Pharonyx’s resolution time of problems reported in a service call will be measured as the time between the acknowledgement of the reception of the service call by Pharonyx and the implementation by Pharonyx of a fix or workaround for the problem reported. The Service Level for response and resolution times to service calls:
Target Response Time
Target Resolution Time
1 – High
2 – Medium
5 Business Days
3 – Low
Severity 1 – High – A Severity 1 Problem arises when the Online Service cannot be accessed or is unable to function properly and no workaround is immediately available.
Severity 2 – Medium – A Severity 2 Problem arises when a major feature or functionality is not available or not functioning properly and use of the Online Service is severely reduced or impacted.
Severity 3 – Low – A Severity 3 Problem arises when a minor problem exists with the Online Service and a workaround is available or when the problem is cosmetic.
Issue Escalation.In the event Pharonyx fails to meet a response or resolution time set forth above, Customer may escalate the issue to the relationship managers identified below and thereafter to the senior management identified below:
1.2 Availability. Pharonyx will make the Online Service available at least 99.5% of the time (“Availability Target”), except as provided below.Availability will be calculated per calendar month, as follows:
“Total”: means the total number of minutes in the calendar month minus the number of minutes of Excluded downtime during such month;
Any planned downtime of which Pharonyx gives 48 or more hours’ notice in accordance with this Agreement, by email or via a conspicuous on-screen message in the Online Service. Pharonyx will use commercially reasonable efforts to schedule all planned downtime during the hours 12 AM to 8 AM Eastern time on Saturday or Sunday, except downtime for major service releases, which Pharonyx will use commercially reasonable efforts to schedule during the hours from 6:00 p.m. Friday to 3:00 a.m. Monday. Pharonyx will use commercially reasonable efforts to notify Customer of major releases at least one week in advance; or
Any unavailability caused by a Force Majeure event, including, without limitation, strikes or other labor problems (other than those involving Pharonyx employees), computer or telecommunications failures or delays involving hardware or software outside of Pharonyx’s physical or logical infrastructure and denial-of-service attacks out of Pharonyx’ss control.
“Downtime”: means downtime that is not Excluded.
For any partial calendar month during the Subscription Term, availability will be calculated based on the entire calendar month, not just the portion for which Customer subscribed.