MAIN SERVICES AGREEMENT

THIS MAIN SERVICES AGREEMENT GOVERNS CUSTOMER’S ACQUISITION AND USE OF RYZ SERVICES. CAPITALISED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

 

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CUSTOMER AGREES TO THE TERMS OF THIS AGREEMENT. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, SUCH INDIVIDUAL REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERM “CUSTOMER” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

 

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes. RYZ’s direct competitors are prohibited from accessing the Services, except with RYZ’s prior written consent.

 

This Agreement was last updated on October 4th, 2023. It is effective between Customer and RYZ as of the date of Customer’s

accepting this Agreement (the “Effective Date”). 

 

RYZ may, at any time, and at our sole discretion, modify these Terms and Conditions of Use, including our Privacy Policy, with or without notice to the User. Any such modification will be effective immediately upon public posting. The Customer’s continued use of the Service following any such modification constitutes the Customer’s acceptance of these modified Terms.

 

1. DEFINITIONS

 

“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

 

“Agreement” means this Main Services Agreement.

 

“Beta Services” means RYZ services or functionality that may be made available to Customer to try at its option at no

additional charge which is clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or

by a similar description.

 

“Content” means information obtained by RYZ from publicly available sources or its third-party content providers and made

available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the

Documentation.

 

“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the

case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity

for which such individual is accepting this Agreement, and Affiliates of that company or entity (for so long as they remain

Affiliates) which have entered into Order Forms.

 

“Customer Data” means electronic data and information submitted by or for Customer to the Services, excluding Content and

Non-RYZ Applications.

 

“Free Services” means Services that RYZ makes available to Customer free of charge. Free Services exclude Services offered

as a free trial and Purchased Services.

 

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms,

time bombs and Trojan horses.

 

“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including,

for example, the AppExchange at http://www.salesforce.com/appexchange, Mulesoft Anypoint Exchange at

https://www.mulesoft.com/exchange, or the Heroku Elements Marketplace at https://elements.heroku.com/, and any successor

websites.

 

“Non-RYZ Application” means Web-based, mobile, offline or other software functionality that interoperates with a Service,

that is provided by Customer or a third party and/or listed on a Marketplace including as Salesforce Labs or under similar

designation. Non-RYZ Applications, other than those obtained or provided by Customer, will be identifiable as such.

 

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered

into between Customer and RYZ or any of their Affiliates, including any addenda and supplements thereto. By entering into

an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

 

“Purchased Services” means Services that Customer or Customer’s Affiliate purchases under an Order Form or online

purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.

 

“Services” means the products and services that are ordered by Customer under an Order Form or online purchasing portal, or

provided to Customer free of charge (as applicable) or under a free trial, and made available online by RYZ, including

associated RYZ offline or mobile components, as described in the Documentation. “Services” exclude Content and

Non-RYZ Applications.

 

“RYZ” means RYZ Solutions Inc. a Canadian corporation having a place of business at 185 rue des Deux-Montagnes Bromont (Québec) J2L 1N9 Canada

 

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorised by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by RYZ without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, RYZ at Customer’s request) has supplied a user identification and password (for Services utilising authentication). Users may include, for example,

employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business.

 

2. RYZ RESPONSIBILITIES

 

2.1 Provision of Purchased Services. RYZ will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable RYZ standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which RYZ shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond RYZ’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror,strike or other labour problem (other than one involving RYZ employees), Internet service provider failure or delay, Non-RYZ Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to RYZ’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s and Users’ use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.

 

2.2 Protection of Customer Data. RYZ will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, as described in the Documentation. Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, RYZ will make Customer Data available to Customer for export or download as provided in the Documentation. After such 30-day period, RYZ will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.

 

2.3 RYZ Personnel. RYZ will be responsible for the performance of its personnel (including its employees and contractors) and

their compliance with RYZ’s obligations under this Agreement, except as otherwise specified in this Agreement.

 

2.4 Beta Services. From time to time, RYZ may make Beta Services available to Customer at no charge and will be considered Free Services. Customer may choose to try such Beta Services or not in its sole discretion.   

 

2.5 Free Trial. If Customer registers on RYZ’s or an Affiliate’s website for a free trial, RYZ will make the applicable Service(s)

available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer

registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for

such Service(s), or (c) termination by RYZ in its sole discretion. Additional trial terms and conditions may appear on the trial

registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are

legally binding.

 

ANY DATA CUSTOMER ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CUSTOMER, DURING CUSTOMER’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CUSTOMER PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD. CUSTOMER CANNOT TRANSFER DATA ENTERED OR CUSTOMIZATIONS MADE DURING THE FREE TRIAL TO A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL (E.G., FROM ENTERPRISE EDITION TO PROFESSIONAL EDITION); THEREFORE, IF CUSTOMER PURCHASES A SERVICE THAT WOULD BE A DOWNGRADE FROM THAT COVERED BY THE TRIAL, CUSTOMER MUST EXPORT CUSTOMER DATA BEFORE THE END OF THE TRIAL PERIOD OR CUSTOMER DATA WILL BE PERMANENTLY

LOST.

 

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY RYZ” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND RYZ SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH

EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE RYZ’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, RYZ AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND © USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE  FULLY LIABLE UNDER THIS AGREEMENT TO RYZ AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

CUSTOMER SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

 

2.6 Free Services. RYZ may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that RYZ, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof.

Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that RYZ will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if RYZ terminates Customer’s account, except as required by law RYZ will provide Customer a reasonable opportunity to retrieve its Customer Data.

 

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY RYZ” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS”

WITHOUT ANY WARRANTY AND RYZ SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE RYZ’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, RYZ AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO RYZ AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

 

3. USE OF SERVICES AND CONTENT

 

3.1 Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying

subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by RYZ regarding future functionality or features.

 

3.2 Usage Limits. Services and Content are subject to usage limits specified in Order Forms and Documentation. If Customer

exceeds a contractual usage limit, RYZ may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding RYZ’s efforts, Customer is unable or unwilling to abide by a contractual usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon RYZ’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

 

3.3 Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and

Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired

Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-RYZ Applications

with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorised access to or use

of Services and Content, and notify RYZ promptly of any such unauthorised access or use, (d) use Services and Content only

in accordance with this Agreement, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-RYZ Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in RYZ’s judgement threatens the security, integrity or availability of RYZ’s services, may result in RYZ’s immediate suspension of the Services, however RYZ will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.

 

3.4 Usage Restrictions. Customer will not (a) make any Service or Content available to anyone other than Customer or Users, or

use any Service or Content for the benefit of anyone other than Customer or its Affiliates, unless expressly stated otherwise in

an Order Form or the Documentation, (b) sell, resell, licence, sublicense, distribute, rent or lease any Service or Content, or

include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-RYZ Application to store

or transmit infringing, libellous, or otherwise unlawful or tortious material, or to store or transmit material in violation of

third-party privacy rights, (d) use a Service or Non-RYZ Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorised access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access, copy or use any of RYZ intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works of a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein

or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.

 

3.5 Removal of Content and Non-RYZ Applications. If Customer receives notice, including from RYZ, that Content or a Non-RYZ Application may no longer be used or must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Customer will promptly do so. If Customer does not take required action, including deleting any Content Customer may have downloaded from the Services, in accordance with

the above, or if in RYZ’s judgement continued violation is likely to reoccur, RYZ may disable the applicable Content, Service

and/or Non-RYZ Application. If requested by RYZ, Customer shall confirm deletion and discontinuance of use of such

Content and/or Non-RYZ Application in writing and RYZ shall be authorized to provide a copy of such confirmation to any

such third-party claimant or governmental authority, as applicable. In addition, if RYZ is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, RYZ may discontinue Customer’s access to Content through the Services.

 

4. NON-RYZ PRODUCTS AND SERVICES

 

4.1 Non-RYZ Products and Services. RYZ or third parties may make available (for example, through a Marketplace or

otherwise) third-party products or services, including, for example, Non-RYZ Applications and implementation and other

consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer

and any Non-RYZ provider, product or service is solely between Customer and the applicable Non-RYZ provider. RYZ

does not warrant or support Non-RYZ Applications or other Non-RYZ products or services, whether or not they are

designated by RYZ as “certified” or otherwise, unless expressly provided otherwise in an Order Form. RYZ is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-RYZ Application or its provider.

 

4.2 Integration with Non-RYZ Applications. The Services may contain features designed to interoperate with Non-RYZ Applications. RYZ cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-RYZ Application ceases to make the Non-RYZ Application available for interoperation with the corresponding Service features in a manner acceptable to RYZ.

 

5. FEES AND PAYMENT

 

5.1 Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

 

5.2 Invoicing and Payment. Customer will provide RYZ with valid and updated credit card information, or with a valid purchase

order or alternative document reasonably acceptable to RYZ. If Customer provides credit card information to RYZ, Customer authorises RYZ to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, RYZ will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order

Form, invoiced fees are due upon receipt of the invoice date. Customer is responsible for providing complete and accurate

billing and contact information to RYZ and notifying RYZ of any changes to such information.

 

5.3 Overdue Charges. If any invoiced amount is not received by RYZ by the due date, then without limiting RYZ’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) RYZ may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.

 

5.4 Suspension of Service and Acceleration. If any charge owing by Customer under this or any other agreement for services is

30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized RYZ to charge to

Customer’s credit card), RYZ may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, RYZ will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Customer.

 

5.5 Payment Disputes. RYZ will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

 

5.6 Taxes. RYZ's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If RYZ has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, RYZ will invoice Customer and Customer will pay that amount unless Customer provides RYZ with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, RYZ is solely responsible for taxes assessable against it based on its income, property and employees.

 

6. PROPRIETARY RIGHTS AND LICENCES

 

6.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, RYZ, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.

 

6.2 Access to and Use of Content. Customer has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.

 

6.3 Licence by Customer to RYZ. Customer grants RYZ, its Affiliates and applicable contractors a worldwide, limited-term licence to host, copy, use, transmit, and display any Non-RYZ Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for RYZ to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-RYZ Application with a Service, Customer grants RYZ permission to allow the Non-RYZ Application and its provider to access Customer Data and information about Customer’s usage of the Non-RYZ Application as appropriate for the interoperation of that Non-RYZ Application with the Service. Subject to the limited licences granted herein, RYZ acquires no

right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-RYZ Application

or such program code.

 

6.4 Licence by Customer to Use Feedback. Customer grants to RYZ and its Affiliates a worldwide, perpetual, irrevocable, royalty-free licence to use, distribute, disclose, and make and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of RYZ’s or its Affiliates’ services.

 

7. CONFIDENTIALITY

 

7.1 Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“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. Confidential Information of Customer includes Customer Data; Confidential Information of RYZ includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without knowledge of any breach of any obligation owed to the Disclosing Party, or (iv) was

independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional RYZ services.

 

7.2 Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing

Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, RYZ may disclose the terms of this Agreement and any applicable Order Form to a contractor or Non-RYZ Application Provider to the extent necessary to perform RYZ’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

 

7.3 Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the

Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

 

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

 

8.1 Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.

 

8.2 RYZ Warranties. RYZ warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the

Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) RYZ will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-RYZ Applications” section above, RYZ will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

 

8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY

DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES PROVIDED FREE OF CHARGE, CONTENT AND BETA SERVICES ARE PROVIDED

“AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.

 

9. MUTUAL INDEMNIFICATION

 

9.1 Indemnification by RYZ. RYZ will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by RYZ in writing of, a Claim Against Customer, provided Customer (a) promptly gives RYZ written notice of the Claim Against Customer, (b) gives RYZ sole control of the defence and settlement of the Claim Against Customer (except that RYZ may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives RYZ all reasonable assistance, at RYZ’s expense. If RYZ receives information about an infringement or misappropriation claim related to a Service, RYZ may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching RYZ’s warranties under “RYZ Warranties” above, (ii) obtain a licence for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defence and indemnification obligations do not apply if (I) the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (II) a Claim Against Customer arises from the

use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by RYZ, if the Services or use thereof would not infringe without such combination; (III) a Claim Against Customer arises from Services under an Order Form for which there is no charge; or (IV) a Claim against Customer arises from Content, a Non-RYZ Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms.

 

9.2 Indemnification by Customer. Customer will defend RYZ and its Affiliates against any claim, demand, suit or proceeding

made or brought against RYZ by a third party (a) alleging that the combination of a Non-RYZ Application or configuration

provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or

(b) arising from (i) Customer’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form, (ii) any Customer Data or Customer’s use of Customer Data with the Services, or (iii) a Non-RYZ Application provided by Customer(each a “Claim Against RYZ”), and will indemnify RYZ from any damages, attorney fees and costs finally awarded against RYZ as a result of, or for any amounts paid by RYZ under a settlement

approved by Customer in writing of, a Claim Against RYZ, provided RYZ (A) promptly gives Customer written notice of the Claim Against RYZ, (B) gives Customer sole control of the defence and settlement of the Claim Against RYZ (except that Customer may not settle any Claim Against RYZ unless it unconditionally releases RYZ of all liability), and (C) gives

Customer all reasonable assistance, at Customer’s expense. The above defence and indemnification obligations do not apply if a Claim Against RYZ arises from RYZ’s breach of this Agreement, the Documentation or applicable Order Forms.

 

9.3 Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified

party’s exclusive remedy against, the other party for any third-party claim described in this section.

 

10. LIMITATION OF LIABILITY

 

10.1 Limitation of Liability. IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CUSTOMER'S AND ITS AFFILIATES’ PAYMENT

OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

 

10.2 Exclusion of Consequential and Related Damages. IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH

DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

 

11. TERM AND TERMINATION

 

11.1 Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions

hereunder have expired or have been terminated.

 

11.2 Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional one year terms, unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at RYZ’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in

which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at

renewal without regard to the prior term’s per-unit pricing.

 

11.3 Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material

breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

 

11.4 Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination”

section above, RYZ will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by RYZ in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law. In no event will termination relieve Customer of its obligation to pay any fees payable to RYZ for the period prior to the effective date of termination.

 

11.5 Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licences,”

“Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-RYZ Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as RYZ retains possession of Customer Data.

 

12. GENERAL PROVISIONS

 

12.1 Anti-Corruption. Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of

value from an employee or agent of the other party in connection with this Agreement. Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.

 

12.2 Entire Agreement and Order of Precedence. This Agreement is the entire agreement between RYZ and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

 

12.3 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise,

joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

 

12.4 Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.

 

12.5 Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

 

12.6 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

 

12.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise,

without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganisation, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favour of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, RYZ will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their

respective successors and permitted assigns.

 

12.8 RYZ Contracting Entity, Notices, Governing Law, and Venue. The RYZ entity entering this agreement is RYZ Solutions Inc.. the address to which the Customer should direct notices is: 

 

185 rue des Deux-Montagnes Bromont (Québec) J2L 1N9 Canada 

attn: CEO 

 

THIS AGREEMENT SHALL BE CONSTRUED AND THE LEGAL RELATIONS BETWEEN THE PARTIES DETERMINED IN ACCORDANCE WITH THE LAWS OF THE PROVINCE OF QUEBEC, CANADA, WITHOUT GIVING EFFECT TO ANY CHOICE OF LAW RULES WHICH MAY DIRECT THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION. 

 

Any dispute or legal action between the parties, including any injunctive or other equitable relief, shall be brought before the courts of the province of QUEBEC, sitting in the judicial district of Montreal, to the exclusion of any other court or jurisdiction.

 

12.9 Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices related to this Agreement will be in

writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email. Billing-related notices to Customer will be addressed to the relevant billing contact designated by Customer. All other notices to Customer will be addressed to the relevant Services system administrator designated by Customer.

 

12.10 Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.