These MarketBox Terms and Conditions (the “Terms and Conditions”) are part of, subject to and governed by the MarketBox Master Agreement between Customer and MarketBox that references these Terms and Conditions.
1. Definitions. Capitalized terms used but not defined in these General Terms have the meaning set forth elsewhere in the Agreement.
2. Platform Access.
2.1 Access. Subject to the terms and conditions of the Agreement and provided Customer remains in compliance with the Agreement, during the term of Agreement, MarketBox will make the Platform available to Customer on the terms and conditions set out in this Agreement.
2.2 Platform Description. The features and functionality of the Platform (the “Platform Description”) are generally described in the Order Form.
2.3 Suspension of Access; Scheduled Downtime; Modifications. MarketBox may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under the Agreement: (a) suspend Customer's access to or use of the Platform or any component thereof: (i) for scheduled maintenance; (ii) due to a Force Majeure; (iii) if MarketBox believes in good faith that Customer or any Permitted User has violated any provision of the Agreement; or (iv) to address any emergency security concerns; and (b) make any modifications, improvements, customizations, updates and enhancements to thePlatform.
2.4 Service Levels. MarketBox will make commercially reasonable efforts to provide the Platform on a 24 x 7 x 365 basis with an objective of achieving 99.00% availability for each calendar month, excluding downtime or suspension of the Platform in accordance with Section 2.3 (the “Availability Service Level”). If MarketBox fails to meet its Availability Service Level in any calendar month during the Term, Customer will be entitled to credits as follows:
Availability Service Level
99.00% or greater: N/A
98%-98.99%: 1%
Under 97.99%: 5%
MarketBox's payment of the credits is MarketBox's sole liability and entire obligation and Customer's exclusive remedy for any breach by MarketBox of its Availability Service Level.
3. Support. MarketBox will provide Customer with access to MarketBox's technical support services: (a) via email at support@gomarketbox.com. In the event that Customer requires additional support services from MarketBox, such services will need to be specified and ordered separately in a SOW under Schedule A. Notwithstanding anything to the contrary in the Agreement, Customer must provide all support to Users and if any User contacts MarketBox for support, MarketBox will direct such User to Customer for support.
4. Branding. If Customer's environment in the Platform will be branded with Customer's branding, Customer will provide all content including business information, logos, color schemes, and word marks (“Customer Content”) as reasonably required by MarketBox to implement such branding. Customer hereby grants MarketBox a limited, non-exclusive and royalty-free license to access, use, copy and modify the Customer Content and all intellectual property rights therein to provide the branded environment.
5. Fees and Payments. In consideration for the access granted to Customer and the performance of MarketBox's obligations under this agreement, Customer will pay to MarketBox the amounts referenced in the Order Form. Any suspension of the Platform by MarketBox pursuant to the terms of the Agreement will not excuse Customer from its obligation to make payments under the Agreement.
6. Term; Transition Services. Term will become effective upon the Effective Date and will continue for the Term, unless earlier terminated in accordance with the terms of the Agreement. Upon termination of Agreement, Customer will immediately cease accessing or using the Platform. Within [90] calendar days following termination, MarketBox will, at Customer's option, return to Customer or delete or otherwise render inaccessible any Customer Data and End Customer Data that remains in the hardware or systems used by MarketBox to provide the Platform. In addition, MarketBox will perform additional transition services that are described in the Order Form, if any.
7. Effect. These Terms and Conditions do not, absent agreement by Customer to an Addendum or Schedule, create any business relationship or impose any obligation on MarketBox to provide any license, access, product, or service.
8. Addenda, Order Form and Pricing Agreement. The Addenda, Order Form and Pricing Agreement contain additional terms and conditions applicable to Customer's purchase (a) the platform made available by MarketBox over the internet as a service that is set out in the Order Form (the “Platform”); and (b) the configuration, customization and other professional services provided by MarketBox that are described in the Order Form (the “Services”). Each Addendum or Schedule referenced in the Order Form will be deemed to be incorporated by reference into the Agreement.
9. Products. In the Agreement, “Products” means the Platform, any documentation made available by MarketBox to Customer and, unless otherwise agreed to, any deliverables identified as such in an Agreement and all bug fixes, patches, work-arounds, updates, upgrades, enhancements, modifications, and other new versions of the Platform that MarketBox makes available to Customer.
10. Proprietary Rights; Prohibited Uses. The Products contain proprietary and trade secret information of MarketBox. Except for the limited rights or licenses that MarketBox grants to Customer under an Addendum, MarketBox and its licensors retain all ownership and proprietary rights in and to the Products, including any and all copies made by Customer, notwithstanding the use of the terms “purchase” or “sell”, or derivations of such terms in the Agreement. Customer will not use the Products for any purposes beyond the scope expressly set out in the Agreement, including, for greater certainty, in the applicable Addendum. Customer will have no right and will not, nor will it authorize or assist any third party to: (a) copy the Products; (b) disassemble, reverse engineer, modify, translate, alter or decompile all or any portion of the Products or otherwise discern the source code of the Products; (c) adapt, modify, translate, or create derivative works of the Products (unless and to the extent authorized in the applicable Addendum); (d) distribute, copy, rent, lease, sublicense, assign, transmit, sell or otherwise transfer the Product or any of Customer's rights therein, except as expressly permitted in the Agreement; or (e) use the Products to create, collect, transmit, store, use, or process any data that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity). Customer must erase or otherwise destroy any portions of the Product installed or contained on any media prior to disposing of such media, and in any event upon termination or expiration of the Agreement. Customer must duplicate all proprietary notices and legends of MarketBox and its suppliers or licensors upon all copies of the Products made by Customer. Customer must not remove, alter, or obscure any such proprietary notice or legend. Nothing in the Agreement will be construed to grant Customer any right to obtain or use source code.
11. Users. Customer will ensure that all of Customer's customers (“End Customers”) to whom Customer provides services using the Products (“Customer Services”), as well as Customers' internal users (“End Users”, and together with End Customers, “Users”), are bound by enforceable agreements containing terms that are no less restrictive or protective of MarketBox's and its licensors’ rights than those set forth in the Agreement. Customer will use all efforts to enforce such agreements similar to those efforts Customer uses to enforce its own terms and agreements for the protection of its own proprietary interests, but in no event less than reasonable efforts.
12. Professional Services. During the Term, Customer may order, and subject to Customer's payment to MarketBox of all applicable Fees, MarketBox will provide, the professional services and deliverables specified in a Professional Services Addendum in accordance with the terms set out therein. In the event that Customer desires MarketBox to provide training of any Product for its employees, agents, or representatives other than training outlined in any Addendum, Customer will enter into a separate statement of work under a Professional Services Addendum governing such additional training services and setting out any corresponding Fees.
13. Fees.
13.1 Fees. Customer agrees that the rights granted under the Agreement, including any license or access provided to Products or Services, are conditioned on Customer's payment of all required fees for such Products or Services, whether upfront, one-time, recurring, or a combination of the foregoing, as specified herein or in the applicable Addendum (“Fees”). In consideration for the rights granted to Customer and the performance of MarketBox's obligations under the Agreement, Customer will pay MarketBox the Fees. Except as expressly stated under the agreement, all fees paid are non-refundable.
13.2 Payment. Unless otherwise noted in an Addendum, all Fees are identified in
US dollars. All Fees have a payment term of net 30 days from the invoice date unless stated otherwise in the applicable Addendum. All Fees under the Agreement are due upon the earlier of the delivery of the applicable Product or Service, or presentation of a MarketBox invoice, or as otherwise specified herein or in the applicable Addendum. Customer's payment is not subject to any setoff claims or rights of offset of any kind, including inactive use, or where access to or use of the Products or Services is prevented for any reason, or Customer has failed to install or use the Product or to provide access for applicable Services. MarketBox reserves the right to take any and all appropriate action if Customer fails to pay as required in the Agreement, which may include: (a) prevention of use of the Products by any party, including the ability to purchase additional seats, capacity, or modules; (b) withholding of Services or maintenance until Customer has paid in full amounts owed to MarketBox; and (c) charging a late fee of 1.5% per month (or less, as per the maximum amount allowed by applicable law) for all past due amounts. Customer agrees to pay and reimburse MarketBox for all such amounts and Fees.
13.3 Taxes. The Fees set out in the Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes(collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with the Agreement, other than Taxes based on the net income or profits of MarketBox. Notwithstanding anything to the contrary in the Agreement, if any amounts (including any Taxes) are required to be withheld by Customer from any amount otherwise payable by Customer to or for the benefit of MarketBox under the Agreement, Customer will: (a) pay an additional amount such that the net amount actually received by MarketBox will, after all such withholdings (including any withholdings to be made in respect of any additional amount payable pursuant to this sentence), equal the full amount of the payment then due; (b) pay, or cause to be paid, to the relevant taxation authority the full amount of such withholdings (including the full amount of any withholdings in respect of any additional payment required to be paid pursuant to this sentence) in accordance with applicable law; and (c) furnish MarketBox as soon as practicable ( and, in any event, within 30 days) with an official receipt (or a certified copy thereof) or such other documentation as is reasonably acceptable to MarketBox evidencing payment of such withholdings to the relevant taxation authority. If Customer is a tax-exempt entity or claims exemption from any Taxes hereunder, Customer will provide a certificate of exemption upon entering the Agreement and, after receipt of valid evidence of exemption, MarketBox will not charge Customer any Taxes from which Customer is exempt.
14. Data.
14.1 Customer Data. Customer retains all ownership and intellectual property rights in and to any data, information, content, records, and files that Customer (or any of its End Users) loads, makes available for access by, transmits to or enters into the Products, including Personal Data (“Customer Data”). Customer grants to MarketBox a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-upright to access, collect, use, process, store, disclose, and transmit Customer Data to: (i) provide the Products and Services and to exercise its rights and perform its obligations under the Agreement; (ii) improve and enhance theProducts and its other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). MarketBox may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
14.2 End Customer Data. “End Customer Data” means any data, information, content, records, and files that End Customers (or any of their End Users) loads, makes available for access by, transmits to or enters into the Products, including Personal Data. Customer acknowledges and agrees that MarketBox may use the End Customer Data to: (i) provide the Products and Services and to exercise its rights and perform its obligations under the Agreement; (ii) improve and enhance the Products and its other offerings; and (iii) produce data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, is also considered Aggregated Data). Customer represents and warrants to MarketBox that, with respect to the End Customer Data, Customer has provided all notices and disclosures and has obtained all applicable consents and permissions, in each case as required by applicable laws, to enable MarketBox to exercise its rights and perform its obligations under the Agreement.
Personal Data. Each party will comply with all applicable laws when using, handling, disclosing, transferring, sharing, or processing, in any way and for any purpose, any information about an identifiable individual (“Personal Data”), including each party's employee and customer Personal Data. The parties will provide reasonable assistance to each other in order to allow the parties to comply with their respective obligations under privacy laws. MarketBox's collection, use, storage, processing, disclosure, and deletion of Personal Data provided to MarketBox by Customer under the Agreement is governed by the privacy statement located at https://www.gomarketbox.com/privacy , which may be updated by MarketBox from time to time.
15. Representations and Warranties; Disclaimer.
15.1 Mutual Representations and Warranties. Each party represents, warrants, and covenants that:
(a) it has full power and all necessary rights to enter into the Agreement; and
(b) it will carry out its obligations under the Agreement in compliance with applicable laws.
15.2 Customer Representations and Warranties. Customer represents and warrants that Customer has obtained all consents required to collect, use, store, process, disclose, and delete Personal Data using the Products and Services or otherwise make available such data to MarketBox or its partners for the purposes of providing the Products and Services.
15.3 Disclaimer.
(a) EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THE AGREEMENT, MARKETBOX DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS OR SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THE AGREEMENT, THE PRODUCTS AND SERVICES (AND ANY PART THEREOF) ARE PROVIDED “AS IS” AND “AS AVAILABLE”. MARKETBOX MAKES NO WARRANTIES UNDER THE AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE PRODUCTS OR FURNISHED TO CUSTOMER BY MARKETBOX.
(b) TO THE EXTENT PERMITTED BY APPLICABLE LAW, MARKETBOX HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANT ABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THEFOREGOING, MARKETBOX EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER'S USE OF THE PRODUCTS (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
15.4 Customer's Responsibilities. Unless otherwise agreed to in an Addendum, Customer is solely responsible for: (a) purchasing and obtaining from third parties, and for maintaining during the Term, all applicable licenses and consents for third party technology needed to install, execute, and otherwise use the Products (unless provided by MarketBox pursuant to the Agreement and paid for by Customer to MarketBox); (b) configuring all equipment, software, and systems used with the Products; and (c) ensuring that Users use the Products in compliance with the Agreement.
16. Indemnities.
16.1 Intellectual Property Indemnity.
(a) Subject to the terms and conditions of the Agreement, MarketBox will defend any suit brought by a third party against Customer to the extent based on a claim that any Product infringes any patent, copyright, trade secret or trademark, and MarketBox will pay any final judgment rendered by a court of competent jurisdiction, or settlement agreed to in writing by MarketBox, with respect to such claim. These obligations are contingent upon Customer promptly notifying MarketBox in writing of any claims or threatened claims, MarketBox having sole control over the defense and all negotiations for settlement of any such claim, and Customer giving all reasonable assistance to MarketBox in the defense and settlement of the claim. These obligations are further subject to Customer being in full compliance with its payment obligations under the Agreement. MarketBox will not be responsible for any settlement it does not approve in writing. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
(b) If any Product (excluding third party products) becomes, or in MarketBox's opinion is likely to become, the subject of an infringement claim, MarketBox may, at its option and sole discretion: (a) obtain for Customer the right to continue to use the Product as provided in the Agreement; (b) replace the Product with another software product that provides similar functionality; or (c) if MarketBox determines that neither of the foregoing options are reasonably available, MarketBox may require that Customer cease use of the Product and MarketBox will refund to Customer a pro-rated portion of the applicable Fees paid.
16.2 Limitations of Indemnity. MarketBox's obligations under Section 16.1 do not apply to any claims, damages or liabilities arising out of or relating to any of the following (“Excluded Claims”): (a) any product or component thereof that is not supplied by MarketBox to Customer under the Agreement; (b) the combination of any Product with any other software, products, equipment, component, processor material in a manner not authorized in the documentation for such Product; (c) any modification to the Product (unless made by MarketBox) if the alleged infringement arises from such modification; (d) use of the Product in a manner not permitted by or in breach of the Agreement; (e) failure to use replace mentor modified Product that provides substantially similar functionality as the original Product if the replacement or modified Product would have rendered theProduct non-infringing; and (f) MarketBox's compliance with Customer's instructions, specifications or requirements. No indemnification for any third party products supplied by MarketBox is provided under the Agreement unless and to the extent such indemnification is provided to Customer under the terms of MarketBox's agreement with the licensor.
16.3 Indemnification by Customer. Customer will indemnify, hold harmless, and, at MarketBox's option, defend MarketBox from and against all costs, expenses (including reasonable attorneys' fees), damages, and liabilities resulting from any claim by any third party arising from or in connection with Excluded Claims or Customer's unauthorized use of the Products.
16.4 Indemnification Process. The party seeking indemnification agrees to give the indemnifying party: (a) prompt written notice of such claim; (b) authority to control and direct the defense or settlement of such claim; and (c) such information and assistance as the indemnifying party may reasonably request, at indemnifying party's expense, in connection with such defense or settlement. Notwithstanding thefore going, the indemnifying party will not settle any third-party claim against the indemnified party unless such settlement completely and forever releases the indemnified party with respect thereto or unless the indemnified party provides its prior written consent to such settlement. In any action that the indemnifying party provides defense on behalf of indemnified party, the indemnified party may participate in such defense at its own expense by counsel of its choice.
17. Limitation of Liability. The following provisions have been negotiated by the parties and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
17.1 AMOUNT. EXCEPT FOR MARKETBOX'S OBLIGATIONS TO DEFEND AND INDEMNIFY CUSTOMER PURSUANT TO SECTION 16, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MARKETBOX IN CONNECTION WITH OR UNDER THE AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER IN THE PRIOR 3 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THE AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MARKETBOX'S LICENSORS OR THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF ANY WAY CONNECTED TO THE AGREEMENT.
17.2 TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MARKETBOX BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (F) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
17.3 THESE LIMITATIONS OF LIABILITY ARE FUNDAMENTAL TO THE BASIS OF THE BARGAIN UNDER THE AGREEMENT, AND THE PARTIES WOULD NOT ENTER INTO THE AGREEMENT ABSENT SUCH LIMITATIONS.
18. Confidentiality.
18.1 Definitions. For the purposes of the Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser”, and “Confidential Information” means information marked or otherwise identified in writing by a party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, a reasonable person should recognize as being confidential; provided that Discloser's Confidential Information does not include, except with respect to Personal Data: (a) information already known or independently developed by Recipient without access to Discloser's ConfidentialInformation; (b) information that is publicly available through no wrongful act of Recipient; or (c) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
18.2 Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (a) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than the Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under the Agreement; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each party will take reasonable precautions to safeguard the other party's ConfidentialInformation. Those precautions will beat least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
18.3 Exceptions to Confidentiality. Notwithstanding Section 18.2, Recipient may disclose Discloser's Confidential Information: (a) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (b) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the party's business; or (c) in the case of MarketBox, to potential assignees, acquirers or successors of MarketBox if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of MarketBox.
19. Term. The Agreement is effective as of the Effective Date and will remain in effect for the Initial Term and any Renewal Terms (collectively, the “Term”), unless earlier terminated in accordance with the Agreement. The Agreement will automatically renew, on the anniversary of the Initial Term, unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof.
20. Termination.
20.1 Termination. Either party may terminate the Agreement or any Addendum by giving to the other party written notice of termination upon the occurrence of any of the following events: (a) the other party breaches or defaults on any of the material terms or conditions of the Agreement (including Customer's payment obligations under Section 13) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (b) the other party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by or against the other party under any insolvency laws or for reorganization, receivership or dissolution. In addition to the foregoing, either party may terminate the Agreement for its convenience at any time upon not less than thirty (30) days' prior written notice to the other Party.
20.2 Effect of Termination. Unless otherwise specified in the Agreement, upon any expiration or termination of the Agreement: (a) Customer must immediately cease any and all use of the Products; (b) within ten (10) days of expiration or termination, Customer will destroy or deliver to MarketBox all copies of the Products, or any portion thereof, and MarketBox's Confidential Information and, at MarketBox's request, an officer of Customer will certify to MarketBox such destruction or delivery; (c) MarketBox may retain Customer's Confidential Information for its records, but the obligations of confidentiality with respect to such information set forth in Section 18 will survive for so long as such information is retained; (d) MarketBox will have no further obligation to provide any Products or perform Services of any kind to Customer; and (e) if Customer terminated the Agreement for its convenience, all amounts payable for the then current term (i.e., the Initial Term or the Renewal Term, as applicable), including amounts not otherwise due or billed as of the effective date of termination, will become immediately due and payable. Expiration or termination of the Agreement will not limit MarketBox from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve Customer's obligation to pay all amounts and Fees that have accrued or are otherwise owed by Customer under the Agreement up to the effective date of termination.
20.3 Survival. Upon any termination or expiration of the Agreement, provisions contained in the Agreement that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of the Agreement, including the terms on the cover pages andSections 10, 13, 15.3, 17, 18, 20.2, 27, 29, 30, and 31 will survive.
21. Certain Remedies. Customer's failure to comply with the obligations of the Agreement will constitute unauthorized use of the Product, entitling MarketBox to terminate the Agreement in whole or in part, withhold Services, and exercise other remedies as provided in the Agreement and available under applicable law, including obtaining equitable relief in the event of a breach adversely affecting MarketBox's Confidential Information or intellectual property rights. In addition, if Customer fails to pay any fees in accordance with the Agreement or fails to comply with any of the license or confidentiality terms of the Agreement, MarketBox may, at its sole discretion, disable the Product without any liability to Customer or any third party. Customer agrees to indemnify, defend, and hold harmless MarketBox with respect to any and all third party claims against MarketBox related to or in connection with any such disablement in accordance with this Section 21.
22. Assignment. The Agreement is binding upon and is for the benefit of the parties, their permitted successors and permitted assigns. Customer may not transfer, sublicense or otherwise assign the Agreement or any of its rights or obligations under the Agreement, by operation of law or otherwise, without MarketBox's prior written consent, which consent will not be unreasonably withheld. Any attempted transfer, sublicense or assignment by Customer in violation of this Section will be null and void. MarketBox may assign, transfer, or delegate the Agreement and any or all of its rights and obligations under the Agreement without Customer's consent.
23. Compliance with Laws. The parties will comply with all applicable laws, rules and regulations, including export laws, in its performance under the Agreement. Customer must ensure that its use of the Products or Services complies in all respects and at all times with all applicable laws, statutes, regulations, ordinances or other rules promulgated by governing authorities that the parties or the Products are subject to, including by means of obtaining any permits, licenses, or approvals required with respect to applicable export regulations.
24. Export. Customer agrees not to directly or indirectly export, re-export or import any of the Products or Services without first obtaining all required licenses, permits and permissions. MarketBox makes no representation or warranty that the Products or Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
25. Force Majeure. MarketBox will be excused from any delays in performance of its obligations under the Agreement if such a delay results from compliance with any requirement of applicable law, acts of God, fire, strike, embargo, terrorist attack, war, insurrection or riot, acts or omissions of Customer or any third parties, or other causes beyond the reasonable control of MarketBox. Any delay resulting from any of such causes will extend performance accordingly or excuse performance, in whole or in part, as may be reasonable under the circumstances.
26. Notices. All notices required by or relating to the Agreement must be in writing and sent by registered mail, return receipt requested, or via an internationally recognized express mail carrier (postage prepaid, return receipt requested), to the applicable party to the Agreement and addressed as set forth on the cover pages, or to such other address as that party may have given by written notice in accordance with this provision. All notices required by or relating to the Agreement may also be communicated by electronic mail, if the sender also mails a hard copy of such notice to the aforementioned address.
27. Non-Solicitation. Customer will not, without the prior written consent of MarketBox, solicit, offer work to, employ, or contract with, directly or indirectly, on its own behalf or on behalf of its affiliates, any Personnel of MarketBox or the Personnel of MarketBox's affiliates during the Term or during the twelve (12) months following termination or expiration of the Agreement. For purposes of this Section, “Personnel” includes any individual whom MarketBox employs or has employed as a partner, employee, or independent contractor and with which Customer comes into direct contact during the Term.
28. No Third Party Beneficiaries. Except for those third parties that have licensed software or other intellectual property to MarketBox that is included as part of the Product, no person or entity will be a third party beneficiary of the Agreement or have any right or cause of action hereunder.
29. Governing Law. The Agreement is governed by and construed in accordance with the laws of the Province of Ontario, and the federal laws of Canada applicable therein, not including its conflict of law principles. The parties disclaim the application of the United Nations Convention on Contracts for the International Sale of Goods to the Agreement.
30. Dispute Resolution.
30.1 Collection Disputes. Any Fee collection disputes arising out of the failure to pay by Customer will be commenced in and determined by a court of competent jurisdiction in the Province of Ontario or, at MarketBox's discretion, in the jurisdiction of incorporation of the Customer. Each of the parties to the Agreement: (a) irrevocably and unconditionally consents and submits to the jurisdiction of such courts in any such action; (b) consents to service of process in accordance with the rules governing proceedings in any such court; and (c) irrevocably waives and covenants not to assert any objection to the laying of venue in any such court in any such action.
30.2 Arbitration.
(a) Subject to Section 30.1, the parties agree to use the process in this Section to resolve any controversy, dispute, or claim arising out of or relating to the Agreement, including its negotiation, validity, existence, breach, termination, construction, or application or the rights, duties, or obligations of any party to the Agreement (a “Dispute”). However, nothing will restrict or prohibit either party from delivering a notice of arbitration at any time in order to protect its rights in relation to a Dispute. The arbitration provisions of the Agreement apply to claims by and against all parties and their affiliates, owners, guarantors, managers, directors, officers, employees, and representatives.
(b) If a Dispute occurs between the parties so that one party is considering legal action against the other party, the party considering the legal action will provide the other party with a written request of a meeting between the parties to attempt to resolve the Dispute in good faith. The parties will attend and participate in a conciliation meeting within 30 days of the written request. Except where the parties are seeking injunctive relief, no legal action will be taken by either party until this meeting occurs or until after the 30 day period, whichever is earlier.
(c) If the Dispute is not resolved at the above conciliation meeting, the Dispute will be referred to and determined by arbitration in accordance with the National Arbitration Rules of the ADR Institute of Canada, Inc. (the “NADR Rules”). Either party may commence the arbitration in accordance with the NADR Rules. The site of the arbitration will be Toronto, Ontario, Canada.
(d) The language of the arbitration will be English and the arbitral tribunal will be comprised of one arbitrator. If the parties do not agree on the identity of the arbitrator within 15 days of the referral to arbitration, then the arbitral tribunal will be appointed by the ADR Institute of Canada. The arbitral tribunal will render its final award and the reasons for the award within 45 days of the conclusion of the hearing, unless such time is reduced or extended by the tribunal after giving the parties an opportunity to be heard. Any award or judgment on an award and any award for interim relief may be entered in any court having jurisdiction and will be final and binding on the parties and will not be subject to appeal.
(e) No party is prohibited from seeking interim, interlocutory, or expedited remedies (including the use of arbitration rules providing for emergency measures of protection), in any forum having jurisdiction, including remedies to preserve or protect trademarks, Confidential Information, copyrights, or trade secrets or for extraordinary relief such as an injunction or eviction.
(f) In addition to any other restriction on the tribunal in the Agreement, in no event will the arbitral tribunal award, or have any jurisdiction to award, punitive or exemplary damages against any party. No arbitration award will have an effect of preclusion or collateral estoppel in any other adjudication or arbitration.
31. General.
31.1 Severability. Any provision of the Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from the Agreement and all other provisions of the Agreement will remain in full force and effect.
31.2 Waiver. A waiver of any provision of the Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
31.3 Construction. Except as otherwise provided in the Agreement, the parties' rights and remedies under the Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of the Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of MarketBox in the Agreement means the right of MarketBox to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
31.4 Independent Contractors. MarketBox's relationship to Customer is that of an independent contractor, and neither party is an agent or partner of the other. Neither party will have, and will not represent to any third party that it has, any authority to act on behalf of the other party.
31.5 Entire Agreement. The Agreement constitutes the entire agreement between the parties with respect to the subject matter of the Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether oral or written. If there is a conflict or inconsistency between the Terms and Conditions and any Addendum, then the provisions of these Terms and Conditions will govern to the extent of such conflict or inconsistency; provided, however, that the provisions of the applicable Addendum will prevail over these Terms and Conditions to the extent the Addendum expressly refers to the provisions of these Terms and Conditions over which it prevails.
31.6 Amendments. MarketBox reserves the right to change these Terms and Conditions and the Addenda at any time by replacing them with a new version. It is Customer's obligation to monitor the MarketBox website for any such new versions. Customer's continued access to or use of the Products after any changes to these Terms and Conditions or any Addenda indicates Customer's acceptance of such changes. It is Customer's responsibility to review these Terms and Conditions and the Addenda regularly.
31.7 English Language. It is the express wish of the parties that the Agreement and all related documents be drawn up in English. C'est la volonté expresse des parties que la présente convention ainsi que les documents qui s'y rattachent soient rédigés en anglais.
31.8 Counterparts. The Order Form may be signed in counterparts. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.
Schedule A - Professional Services Addendum
This Professional Services Addendum is part of, subject to and governed by the MarketBox Master Agreement between Customer and MarketBox that references this Professional Services Addendum.
1. Definitions. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement.
2. Statements of Work. MarketBox and Customer may, from time to time, agree to perform services and provide deliverables that are not included in the then-current scope of Services provided under the Agreement (“Projects”). The parties will identify each Project and the terms and conditions relating to such Project in the Order Form or in a statement of work (“SOW”). Each SOW, when duly executed, will be incorporated into and subject to this Professional Services Addendum. In the event of a conflict or inconsistency between any SOW and this Professional Services Addendum or any other part of the Agreement, this Professional Services Addendum or other part of the Agreement will govern, as applicable; provided, however, that the provisions of the applicable SOW will prevail over this Professional Services Addendum or other part of the Agreement to the extent the SOW expressly refers to the provisions of this Professional Services Addendum or other part of the Agreement over which it prevails.
3. Services and Deliverables. MarketBox will use commercially reasonable efforts to deliver all items expressly identified as a deliverable in the Order Form or in a SOW (“Deliverables”) and to perform all Services expressly set out in the Order Form or in a SOW. All Services will be performed remotely unless otherwise indicated in the Order Form or in a SOW as being an on-site provided service. Unless otherwise agreed to by the parties in the Order Form, in a SOW or in a separate written agreement or addendum to the Agreement, MarketBox will have no obligation to provide support and maintenance services for Deliverables.
4. Resource Management. MarketBox will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Services. MarketBox's resources may include employees of MarketBox or subcontractors. The delegating or subcontracting of MarketBox's obligations set out in this Professional Services Addendum will not relieve MarketBox from any obligation or liability under this Professional Services Addendum.
5. Term and Termination; Suspension.
5.1 Addendum Term. This Professional Services Addendum will become effective upon the Effective Date and will continue for the Term, unless earlier terminated in accordance with the terms of the Agreement. For clarity, this Professional Services Addendum will terminate upon any termination or expiration of the Agreement.
5.2 Project Term. Each Project will become effective on the effective date set out therein (the “Project Effective Date”) and, unless otherwise provided in the Order Form or SOW, will continue for the term indicated in the Order Form or SOW, unless earlier terminated in accordance with the terms of the Agreement (the “Project Term”).
5.3 Termination. Without limiting any other termination right set out in the Agreement, either party may terminate any Project if the other party breaches on any of the material terms or conditions applicable to such Project in the Order Form or SOW and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any such breach that is incapable of being cured, such termination will be effective immediately.
5.4 Suspension. In addition to MarketBox's termination rights set out in the Agreement, upon any breach by Customer of the terms or conditions applicable to a Product in the Order Form, a SOW, or the Agreement, MarketBox will be entitled, in its discretion, to suspend the Services under the applicable Project until such time as such breach or default is remedied by Customer.
5.5 Effect of Termination. Without limiting Section 20.2 of the Terms and Conditions (Effect of Termination), within ten (10) days of the expiration or termination of this Professional Services Addendum or any Project, as applicable, Customer will destroy or deliver to MarketBox all copies of the Deliverables delivered thereunder, or any portion thereof, and MarketBox’s Confidential Information, and an officer of Customer will certify to MarketBox such destruction or delivery. Customer will pay all Fees and related expenses for the portion of Services performed or Deliverables completed as of the effective date of termination.
6. Milestones; Deliverables and Acceptance; Repair of Defects.
6.1 Milestones. For any Deliverable, Service, or other performance obligation of MarketBox described as a milestone in the Order Form or an applicable SOW (each, a “Milestone”), MarketBox will use commercially reasonable efforts to complete such Milestone on or before the deadline specified for such Milestone in the Order Form or applicable SOW. Any delay in receiving Customer Resources will cause MarketBox a delay in performing the Services and will result in a delay in MarketBox's ability to meet the Milestones.
6.2 Deliverables and Acceptance. Unless otherwise stated in the Order Form or a SOW, within ten (10) business days of MarketBox's completion of any Milestone or Deliverable, Customer will provide MarketBox with written notice of its acceptance or rejection of such Milestone or Deliverable. Customer may not reject any Milestone or Deliverable that substantially complies with the requirements set out in the Order Form or applicable SOW, and Customer's failure to respond within such ten (10) day period will constitute Customer's acceptance of the applicable Milestone or Deliverable. If Customer rejects a Milestone or Deliverable, MarketBox will use commercially reasonable efforts to correct the deficiencies set out in Customer's notice of rejection for such Milestone or Deliverable. Once MarketBox has notified Customer that it has completed such corrections, Customer will have seven (7) days from the date of such notice to re-test the Milestone or Deliverable. Customer's failure to respond within such seven (7) day period will constitute Customer's acceptance of the applicable Milestone or Deliverable. The process set out in this Section 6.2 will continue until Customer notifies MarketBox of its acceptance of a Milestone or Deliverable, or until a Milestone or Deliverable is deemed accepted as set forth herein, but will in no event repeat more than three (3) times. If Customer has provided three rejection notices for the same Milestone or Deliverable, then the parties will treat the matter as a Dispute and will resolve such Dispute in accordance with Section 30 of the Terms and Conditions (Dispute Resolution). Notwithstanding anything to the contrary in this Agreement, if Customer uses any Deliverable in a production or commercial environment (e.g., “go live” with the Deliverable), Customer will be deemed to have accepted such Deliverable as of the date such Deliverable was first used in such production or commercial environment.
7. Customer Dependencies.
7.1 Customer will cooperate with MarketBox in the performance of the Services and in the development of Deliverables, including by providing access (whether onsite or remotely, as specified in the Order Form or the applicable SOW) to Customer's personnel, systems, equipment, or communications facilities, as reasonably requested by MarketBox from time to time. If Customer has not provided all necessary cooperation or information to MarketBox, or MarketBox is otherwise denied or delayed access or information by Customer, then MarketBox will be excused, without liability, from performing any further Services. Such failure to perform Services resulting from Customer's failures will not relieve Customer from its payment obligations to MarketBox.
7.2 Unless otherwise set out in the Order Form or applicable SOW, for each Project, Customer will:
a) provide timely access to all information requested by MarketBox for matters related to the Services;
b) provide administrator-level access to MarketBox to enable service delivery, installation, and configuration;
c) make available at no charge to MarketBox all information and key Customer personnel required by MarketBox in connection with the Services (collectively, “Customer Resources”);
d) accept each completed Milestone or Deliverable prior to MarketBox commencing work on the next Milestone or Deliverable; and
e) Customer will log all incidents with MarketBox as soon as they become aware of the incident.
8. Change Requests.
8.1 Changes. Any service or deliverable not specifically set out in the Order Form or a SOW will be considered out-of-scope and not included in the Services or Deliverables. The parties may request any change to the nature or scope of any Services or Deliverables then-currently provided (each, a “Change”) pursuant to this Section 8.
8.2 Change Order Process. If, after MarketBox's commencement of Services set out in the Order Form or a SOW, either party requires a Change, such party will set out the new requirements in writing and deliver such request to the other party. Following a request made by Customer (or, in the case of a request made by MarketBox, concurrently with such request), MarketBox will use commercially reasonable efforts to describe in writing the estimated impact of such Change to the costs, Milestones, timeline, Customer responsibilities, and other relevant aspects of the Services or Deliverables. If Customer agrees with such written description of the estimated impact, then the parties will negotiate in good faith a Change order setting out the detailed terms and conditions pursuant to which the Change will be implemented (“Change Order”). If Customer disagrees with such written description of the estimated impact and the parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the Order Form or SOW will be effective, and MarketBox will perform the Services in accordance with the original Order Form or SOW.
9. Limitation of Liability. NOTWITHSTANDING SECTION 17.1 OF THE TERMS AND CONDITIONS (AMOUNT), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC ORDER FORM OR SOW OUT OF WHICH THE LIABILITY AROSE. MarketBox's liability will be further limited as provided in the Agreement.
10. Disclaimers. Without limiting Section 15.4 of the Terms and Conditions (Customer’s Responsibilities): (a) MarketBox will have no liability for loss or recovery of data or programs or for Customer's failure to properly back-up any data or programs; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Resources.
11. No Assignment or Transfer of Intellectual Property. Without limiting Sections 8 and 9 of the Terms and Conditions (Addenda, Order Form and Pricing Agreement and Products, respectively), MarketBox retains all ownership and intellectual property rights in and to: (a) the Services; (b) the Deliverables; (c) anything developed or delivered by or on behalf of MarketBox under this Professional Services Addendum or any Order Form or SOW; and (d) any modifications or enhancements to (a), (b) or (c). All rights not expressly granted by MarketBox to Customer under this Professional Services Addendum, the Order Form or any SOW are reserved.
12. No Exclusivity. Unless otherwise specified in the Order Form or applicable SOW, all Deliverables are non-exclusive and may be provided to any or all MarketBox customers in MarketBox's sole discretion.
13. Fees and Expenses. In consideration for the Services or Deliverables performed or provided to Customer under this Professional Services Addendum, Customer will pay to MarketBox the amounts set forth in the Order Form and each applicable SOW. Unless otherwise agreed to by the parties in writing, MarketBox must receive all prepayment amounts listed in the Order Form and SOWs before the commencement of any services thereunder. Any suspension of the Services by MarketBox pursuant to the terms of the Agreement will not excuse Customer from its obligation to make payments under the Agreement. Customer agrees to pay all reasonable, pre-approved in writing, out-of-pocket expenses incurred by MarketBox in connection with performing Services or delivering any Deliverables, including all reasonable travel expenses.
14. Survival. Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum, including Sections 5.5, 9, 10, and 13, will survive.
