Last Updated: October 27, 2023
PLEASE READ THESE TERMS CAREFULLY AS THEY MAY HAVE CHANGED FROM THE LAST TIME YOU VISITED THIS PAGE.
This Service Agreement, together with any order form, service order, statement of work, insertion order or any other document that incorporates this Service Agreement by reference or by attachment (each an “Order Form”), form the terms and conditions relating to the Services (as defined below) provided hereunder (this Service Agreement together with Order Form(s) shall be referred collectively as the “Agreement”).
The acceptance of an Order Form incorporating this Service Agreement by reference creates a binding agreement between the party listed on the Order Form (“Customer” or “You”) and Carity Inc. (“Company” or “Carity”). If Customer and Carity have entered into an Order Form with a version of the Service Agreement attached, such version of the Service Agreement shall apply to the Services purchased by Customer.
2.1 Subscription. The details of Customer’s subscription to the Platform shall be set forth in an Order Form mutually agreed between the Parties (each subscription, the “Subscription”). The Order Form shall state the part of the Platform to which Customer is subscribing, along with any additional subscription limitations applicable to Customer (e.g. limits on access and usage, such as number of subscriptions, usage limits, and number of users). The Subscription permits Customer to access and use the Platform as set out in the applicable Order Form but does not grant Customer with any right to reproduce, modify, distribute or any other right to the Platform not specifically provided herein. Except as specifically provided herein, Carity retains all right, title and interest in the Platform.
2.2 Usage Restrictions. Customer must not:
2.3 Your Content. The Platform may permit the ability for Customer and its Authorized Users to upload, link, submit or otherwise reference content, images, data and other information to be imported into the Platform (the “Customer Content”). By importing the Customer Content into the Platform, Customer (i) represents that it has the necessary rights to import the Customer Content into the Platform and to be used therewith, and (ii) hereby grants to Carity, during the Term, a limited, royalty-free, non-exclusive, non-transferable, non-assignable license to reproduce, modify, create derivative works, publicly perform, publicly display and use the Customer Content in connection with the Platform.
2.4 Customer’s Obligations.
3.1 Professional Services. Carity may perform implementation, training, consultation or other services related to the Platform as set out in a separate Order Form or the same Order Form as the Subscription (the “Professional Services”). Carity will provide such resources and utilize such employees and/or contractors as Carity deems necessary to perform the Professional Services. Carity will use commercially reasonable efforts to meet the delivery schedules set forth in the Order Form, and Customer agrees to cooperate in good faith to allow Carity to achieve completion of such Professional Services in a timely manner, including by providing materials and assistance as reasonably requested by Carity. If achievement of any particular milestone is dependent upon performance of tasks by Customer and/or by a third party outside of Carity’s control, and the Customer and/or the third party is responsible for any delay, the date of the milestone shall be automatically adjusted to account for such delay.
3.1 Changes. If any changes to the Professional Services are required, the Parties shall document such changes in writing. Any changes that result in a variance of Service Fees and/or Expenses shall be agreed to in writing.
4.1 Subscription Fees. Fees for each Subscription shall be stated in the applicable Order Form (the “Subscription Fees”). If an Order Form sets out a minimum Subscription Fee related to usage, consumption or other event rated fee, Customer shall be responsible for such minimum Subscription Fee even if Customer’s actual usage of the Platform does not reach the minimum Subscription Fee stated in the applicable Order Form.
4.2 Professional Services Fees.
4.2 Invoice and Payment. All Subscription Fees, Service Fees and Expenses shall be subject to applicable taxes and any pre-paid Subscription Fees and Service Fees are non-refundable. Unless stated otherwise in the applicable Order Form, Subscription Fees shall be invoiced to Customer, in advance, on a monthly basis, and 50% of the Service Fees shall be invoiced in advance upon execution of the applicable Order Form and the remaining 50% of the Service Fees shall be invoiced upon completion of the Professional Services. All invoices shall be due within thirty (30) days from the invoice date. A late charge of 1.5% per month, or the maximum amount permitted by law, whichever is less, may be applied to all overdue amounts. If the Subscription Fees, Service Fees and/or Expenses are paid using a credit card, a 2.4% credit card processing fee, or the maximum amount permitted by law, whichever is less, shall be applied.
5.1 Subscription Term. The initial duration of each Subscription shall be stated in the applicable Order Form (each an “Initial Subscription Term”). Unless stated otherwise in the applicable Order Form, each Subscription shall auto-renew for a duration equal to the applicable Initial Subscription Term (each a “Renewal Subscription Term”; and, the Initial Subscription Term and all Renewal Subscription Term(s), if any, for each Subscription, collectively, the “Subscription Term”) unless Customer has notified Carity in writing of its intention not to renew the applicable Subscription at least thirty (30) days prior to the expiration of the Subscription Term. If Customer has multiple Subscriptions, Customer shall clearly state in such notice, the Subscription(s) that is not being renewed. At renewal, Carity shall have the right to increase the applicable Subscription Fees to the then current rate; provided that, such increases are notified at least thirty (30) days prior to the expiration of the applicable Subscription Term.
5.2 Professional Services. The Order Form for the Professional Services shall state the term during which such Professional Services shall be provided. Unless stated otherwise in the applicable Order Form, such Order Form shall be terminated after delivery of the Professional Services and payment of the appliable Service Fees and/or Expenses.
5.3 Terms of Service Agreement. This Service Agreement shall commence on the effective date of the first Order Form that incorporates the terms and conditions of this Service Agreement and shall continue until all Order Forms are terminated in accordance with this Article 5 (the “Term”).
5.4 Termination for Breach. Either A Party (the “Non-Breaching Party”) may terminate this MSA and/or the applicable Order Form if the other Party (the “Breaching Party”) materially breaches this MSA and/or the applicable Order Form. The other Breaching Party shall be considered to be in material breach if any of the following events occur: (i) if the other Breaching Party is Customer, where Customer fails to pay any overdue invoices fifteen (15) days after Customer receives written notice of non-payment; (ii) the other Breaching Party is in breach of a material, non-monetary term, condition, or provision of this Agreement and such breach is not cured within thirty (30) days of the written notice; or (iii) the Breaching other Party undertakes liquidation, dissolution or winding-up, is unable to pay its debts or obligations as they become due, makes an assignment for the benefit of creditors, becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal, provincial or state law. The written notice for termination shall include a detailed explanation of the material breach justifying the termination in accordance with this Section 5.4.
5.5 Suspension of Subscription. Carity may suspend any Subscription or the performance of the Professional Services, as applicable, if (i) any invoice, and any interest accrued thereon, remains unpaid after Carity has notified the Customer of an outstanding invoice, or (ii) Customer or its Authorized Users violate the terms of this Agreement. The exercise of this suspension right shall not be considered a breach of this Agreement by the Carity.
5.6 Effect of Termination.
6.1 Confidential Information.
6.3 The disclosure restrictions contained in these Confidentiality Provisions do not apply to disclosure that is required (i) by law or any order of any competent court or other authority; or (ii) pursuant to the rules of any relevant stock exchange; unless Receiving Party is permitted or required by law, order or such rule to refrain from making such disclosure for confidentiality or other reasons. Prior to making such disclosure, Receiving Party shall, to the extent not prohibited by such law, order or rule:
6.4 All Confidential Information shall at all times remain the property of Disclosing Party. Nothing in these Confidentiality Provisions or in the disclosure of any Confidential Information confers any interest in the Confidential Information to Receiving Party or its Representatives.
6.5 Receiving Party acknowledges that the disclosure of any aspect of the Confidential Information contrary to these Confidentiality Provisions will give rise to irreparable injury to Disclosing Party inadequately compensable in damages. Disclosing Party may, in addition to any other remedy, enforce the performance of these Confidentiality Provisions by way of injunction or specific performance upon application to a court of competent jurisdiction without proof of actual damages (and without the requirement of posting a bond or other security) and, notwithstanding that damages may be readily quantifiable, Receiving Party agrees not to plead sufficiency of damages as a defence in any such proceeding. The rights and remedies provided herein are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or equity. All such rights and remedies may be exercised from time to time, and as often and in such order as Disclosing Party deems expedient. Receiving Party shall immediately notify Disclosing Party of any breach of these Confidentiality Provisions.
7.1 Proprietary Rights of Carity. Carity retains all right, title and interest (including any Intellectual Property Rights) in the Platform, Documentation, and any work resulting from the Professional Services performed by Carity. Except for any rights granted in this Agreement, Customer does not acquire any right, title and interest (including any Intellectual Property Rights) to the Platform, Documentation and any work resulting from the Professional Services performed by Carity.
7.2 Proprietary Rights of Customer. Customer retains all right, title and interest (including any Intellectual Property Rights) in the Customer Content. Except for the rights to the Aggregated Data granted in this Agreement, Carity does not acquire any right, title and interest (including any Intellectual Property Rights) to the Customer Content.
7.3 Third Party Services. The Platform may provide or may permit Customer to use products and/or services from third party service providers (those products and/or services, the “Third Party Services”; those service providers, the “Third Party Service Providers”). Customer acknowledges and agrees that Carity makes no representations, warranties or covenants with respect to any Third Party Services and Your use of the Third Party Service shall be governed by the terms and conditions applicable thereto. You agree to comply with such terms and conditions and agree that Carity shall not be liable or responsible for any of the Third Party Services or the actions or inactions of the applicable Third Party Service Providers.
7.4 Aggregated Data. Carity may collect and aggregate data derived from the operation of the Platform (the “Aggregated Data”) and may use the Aggregated Data for purposes such as operating, developing, monitoring and improving the Platform and any related Carity business, including training new or existing artificial intelligence models. Such Aggregated Data will be de-identified to exclude information about You, Authorized Users and any information that identifies an individual. Carity shall own all right, title and interest (including any Intellectual Property Rights) in the Aggregated Data.
7.5 Feedback. During the Term, if Customer or its Representatives make any suggestions for changes, modifications or improvements to the Platform or the Documentation (those suggestions, the "Feedback"), all such Feedback shall be solely owned by Carity. Customer shall do (and shall cause its Representatives to do) all that is necessary to assign the ownership of such Feedback to Carity.
7.6 Marketing. Customer hereby grants Carity the right to display Customer’s name and logo on its website for marketing purposes. If any testimonial or review was provided, Carity shall be permitted to display such testimonial or review on its website.
8.1 Capacity. Each Party represents that:
8.2 Limited Warranty. Carity warrants that, during the Term, the Platform will perform materially in accordance with the Documentation. In the event of a breach of the foregoing warranty, Customer’s exclusive remedy shall be to request Carity to prioritize repair of such non-conformity and Carity shall use commercially reasonable efforts to fix such non-conformity within thirty (30) days of the request.
8.3 Indemnification. Customer (the “Indemnifying Party”) will defend Carity (the “Indemnified Party”), and its successors, assigns, shareholders, partners, directors, officers, agents, affiliates, subsidiaries, employees and contractors (such parties together with the Indemnified Party, the “Indemnified Parties”) from and against any and all Third Party Claims and indemnify Indemnified Parties for any and all damages, fines, penalties, losses, liabilities (including settlements and judgments), costs and expenses (including interest, court costs, reasonable fees and disbursements of lawyers, accountants and other experts and professionals or other reasonable fees and expenses of investigation, litigation, settlement or other proceedings or of any claim, default or assessment) arising from, in connection with, or related to (a) breach of Article 2; or (b) Customer Content. The Indemnifying Party shall not settle any Claim without the written consent of the Carity, which shall not be withheld unreasonably. The obligation to defend and indemnify set out in this Section shall be referred to as “Indemnity Obligations”.
8.4 Indemnification Procedures. Indemnifying Party’s obligation to defend and indemnify under this Service Agreement is contingent upon: (i) the Indemnified Party promptly notifying the Indemnifying Party in writing of any Claim for which the Indemnified Parties have a right under Section 8.3 (each an "Indemnified Claim"), provided that, the Indemnifying Party shall not be excused from its Indemnity Obligations unless the Indemnifying Party is materially prejudiced from such delay, in which case, the Indemnifying Party shall be excused from its Indemnity Obligations only to the extent prejudiced; (ii) the Indemnified Party reasonably cooperating during defense and settlement efforts at no charge to the Indemnifying Party; and (iii) the Indemnifying Party not making any admission, concession, consent judgment, default judgment or settlement of the Indemnified Claim or any part thereof without the written consent of Indemnified Party.
9.1 Disclaimer. EXCEPT FOR ANY REPRESENTATIONS AND WARRANTIES EXPRESSLY PROVIDED IN THIS AGREEMENT, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, THE PLATFORM, AND THE DOCUMENTATION ARE PROVIDED ON AN “AS IS” BASIS. ALL CONDITIONS, REPRESENTATIONS, WARRANTIES AND COVENANTS, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY LAW, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ACCURACY OF MEASUREMENTS OR OTHER OUTPUTS, THAT THE PLATFORM WILL BE FREE OF FAULT OR INTERRUPTIONS, OR ANY IMPLIED WARRANTY ARISING FROM STATUTE, COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. EXCEPT TO THE EXTENT AN EXPRESS INDEMNITY IS PROVIDED IN THIS MSA, CARITY HAS NO OBLIGATION TO INDEMNIFY, DEFEND OR HOLD HARMLESS CUSTOMER OR ANY OF ITS SUCCESSORS, ASSIGNS, SHAREHOLDERS, PARTNERS, DIRECTORS, OFFICERS, AGENTS, AFFILIATES, SUBSIDIARIES, EMPLOYEES OR CONTRACTORS, INCLUDING AGAINST CLAIMS RELATED TO PRODUCT LIABILITY OR INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS. NOTWITHSTANDING ANYTHING IN THIS AGREEMENT, NO REPRESENTATIONS, WARRANTIES, COVENANTS, INDEMNITY ARE PROVIDED RELATING TO RESTRICTED DATA AND REQUIREMENTS TO COMPLY WITH LAWS AND REGULATIONS WITH RESPECT TO RESTRICTED DATA SHALL NOT APPLY. THE PLATFORM MAY BE SUBJECT TO LIMITATIONS OR ISSUES INHERENT IN THE USE OF THE INTERNET AND CARITY IS NOT RESPONSIBLE FOR ANY PROBLEMS OR OTHER DAMAGE RESULTING FROM SUCH LIMITATIONS OR ISSUES.
9.2 Limitation of Liabilities.
10.1 Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between the Parties. The Parties expressly disclaim any reliance on any and all communications, discussions, proposals and/or agreements (verbal or written) between the Parties.
10.2 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein. This Agreement will be deemed to be made in the Province of Ontario and, subject to Section 9.4, the Parties hereby submit to the exclusive jurisdiction of the courts of the Province of Ontario for any legal action arising out of or related to this Agreement and agree not to commence any action, suit or proceeding in any jurisdiction other than the Province of Ontario. A Party may bring suit against the other Party in a forum other than Ontario, Canada, provided that (A) such suit is solely for an injunction to enforce this Agreement and is not for damages; (B) such suit is brought against the other Party in a jurisdiction or forum in which the other Party is doing business; and (C) the other Party is not a resident of Ontario, Canada and would not otherwise be directly subject to an injunction issued by an Ontario, Canada court.
10.3 Force Majeure. Notwithstanding anything to the contrary contained herein, a failure or delay in performance by a Party, other than a payment obligation, shall be excused to the extent caused by a Force Majeure Event provided that, the affected Party notifies the other Party promptly and in detail of the commencement and nature of such Force Majeure Event, and provided further that the affected Party uses its commercially reasonable efforts to render performance in a timely manner utilizing to such end all resources reasonably required in the circumstances.
10.4 Dispute Resolution Procedure.
10.5 Relationship of the Parties. The Parties are independent contractors. Nothing in this Agreement will be deemed to create a partnership or joint venture or a relationship of principal and agent, employer-employee, master-servant, or franchisor-franchisee among or between the Parties. The relationship between the Parties is non-exclusive.
10.6 No Assignment. Except as expressly permitted in this Agreement, Customer may not assign, transfer or sub-license any of its rights or delegate any of its responsibilities without the written consent of Carity.
10.7 Severability. The Parties agree that it is the intention of each Party not to violate any public policy or law. To the extent that any provision of this Agreement is deemed to be invalid, illegal or unenforceable, such provision will be severed and deleted or limited so as to give effect to the intent of the Parties insofar as possible and the Parties will use their best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provisions and the remainder of this Agreement will remain binding upon the Parties.
10.8 No Waiver. Either Party's failure to enforce any provision or right in this Agreement will not be construed as a waiver of any such provision or right. Waiver of any provision or right must be specifically in writing by the waiving Party. Except as expressly stated in the written waiver, a Party's waiver shall not operate or be construed as a continuous waiver to such provision or right.
10.9 Notices. Any demand, notice, consent, authorization or other communication required or permitted to be given in connection with this Agreement must be given in writing and will be given by personal delivery or sent by, courier, prepaid registered mail or electronically receipted e-mail, in each case addressed to the recipient as follows: (1) in the case of Carity, Attn: legal, 4145 North Service Road, 2nd Floor, Burlington, Ontario, L7L 6A3 with a copy to email@example.com; and (2) in the case of Customer, to the address stated in the applicable Order Form, Attn: legal, or to such other address, individual, or email address as may be designated by notice given by either Party to the other Party in the same manner. Any demand, notice, consent, authorization or other communication if given by personal delivery (including courier) will be deemed to have been given on the day of actual delivery thereof, if given by registered mail will be deemed to have been given on the fifth (5th) Business Day following the deposit thereof in the mail, if given by electronically receipted e-mail will be deemed to have been given upon receipt thereof.
10.10 Counterparts and Electronic Execution. The execution of the Order Form, which incorporates this Service Agreement by reference, whether executed electronically or physically, and delivered by electronic means or sent to the addresses set forth in Section 10.9, shall constitute effective delivery by that Party of an original executed copy of this Agreement to the Party receiving the transmission. Also, the Order Form may be executed by the Parties in several counterparts, each of which will be deemed to be an original, but all of which taken together will constitute one and the same instrument.
10.11 Customer Terms. No terms in any purchase order, invoice or other document of the Customer, other than the identification of the Services being purchased, the Subscription Term, the applicable pricing and the address for invoicing shall be binding on Carity, and all such terms are hereby expressly rejected.