Hosted Software Terms
These Hosted Software Terms (the “Terms”) apply to any purchase order, quote, statement of work, or any other scoping document (collectively, a “Purchase Order”) entered into between White Tuque Inc. (“White Tuque”) and any of its clients or customers (each a “Client”) which specifically references these Terms.
1. Definitions. When used herein, the following terms shall have the meaning set forth below:
(a) “Agreement” means the agreement formed between White Tuque and the Client by virtue of the entering into of the Purchase Order, which Agreement is governed by these Terms and the terms of the Master Agreement, as further set forth herein;
(b) “Client Systems” means the software and hardware used by the Client in the conduct of its business;
(c) “Documentation” means the Master Licensor or White Tuque’s user manuals, handbooks, and installation guides relating to the Software provided to Client either electronically or in hard copy form;
(d) “Master Licensor” means the third party, if any, who holds the master license for the Software being delivered by White Tuque in accordance with these Terms;
(e) “Master Agreement” means the Master Service Agreement provided to the Client by White Tuque (whether by way of posting on White Tuque’s website or otherwise) prior to or concurrently with the entering into of the Purchase Order;
(f) “Purchase Order” has the meaning set forth above;
(g) “Services” means the provision of the Access Right and the Deployment Services;
(h) “Software” means the product(s) described in the Purchase Order; and
(i) “Software Term” means the term of the license granted to the Client to use the Software. means the Master Licensor or White Tuque’s user manuals, handbooks, and installation guides relating to the Software provided to Client either electronically or in hard copy form;
2. Access. Subject to the provisions of these Terms and of the Master Agreement, White Tuque will provide the Client with access to the Software during the Software Term solely for the Client’s internal business purposes (the “Access Right”).The Client agrees that the Documentation governs its use of the Software hereunder and forms an integral part of these Terms.
3. Master Service Agreement. The provisions of the Master Agreement are applicable to these Terms and by entering into the Agreement, the Client represent and warrants that they have read, understood, and agreed to be bound by the terms of the Master Agreement. The provision of the Access Right and of the Deployment Services (as defined below) shall be considered “Services” under the Master Agreement and the Purchase Order shall be considered a “Statement of Work” under the Master Agreement.
4. Services. White Tuque will do all things required in order to deploy the Software to the Client Systems on or around the date indicated on the Purchase Order, or, if no date is so indicated, within a commercially reasonable amount of time after the entering into of the Purchase Order and / or payment of Fees (if applicable) (the “Deployment Services”).
5. Client Responsibilities.
(a) Client is responsible and liable for all access to and uses of the Software and Documentation, directly or indirectly, whether such access or use is permitted by or in violation of these Terms.
(b) Client shall:
(i) provide White Tuque with access to the Client Systems as reasonably required by White Tuque to provide the Deployment Services;
(ii) provide White Tuque with co-operation and access to all Client information, materials, and personnel;
(iii) provide White Tuque with information and responses to communications from White Tuque in a timely fashion;
(iv) not take any action that would adversely affect or otherwise hinder the ability of White Tuque to provide the Services or otherwise attempt to circumvent the Agreement;
(v) use, maintain, and pay for all software, hardware and third-party services with which the Services interact or to which they relate in accordance with the procedures, policies, rules, and regulations applicable to such software, hardware or services as communicated by the developer, manufacturer, retailer, wholesaler or other provider thereof;
(vi) ensure provision of persistent high speed internet connections as appropriate with respect to the Services and payment of all costs and expenses affiliated therewith;
(vii) ensure that it does not store, distribute or transmit through the Services any material that:
(A) is unlawful, harmful, threatening, defamatory, obscene, harassing or racially or ethnically offensive;
(B) facilitates illegal activity;
(C) depicts sexually explicit images; and/or
(D) promotes unlawful violence, discrimination based on race, gender, age, disability, sexual orientation, religion, belief or gender reassignment, or any other illegal activity.
all as reasonably required by White Tuque in order to provide the Services.
(a) Fees. Client shall pay White Tuque the fees (“Fees“) set forth in the Purchase Order without offset or deduction on or before the due date set forth in the Purchase Order. If Client fails to make any payment when due, in addition to all other remedies that may be available: (i) White Tuque may charge interest on the past due amount at the rate of eighteen percent (18%) calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable law; and (ii) Client shall reimburse White Tuque for all costs incurred by White Tuque in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) White Tuque may prohibit, or cause the Master Licensor to prohibit, access to the Software until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Client or any other person by reason of such prohibition of access to the Software.
(c) Taxes. Unless indicated otherwise in the Purchase Order, all Fees and other amounts payable by Client in connection with the Purchase Order are exclusive of taxes and similar assessments. Client is responsible for all goods and services, harmonized sale, sale, service, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial or territorial governmental or regulatory authority on any amounts payable by Client hereunder, other than any taxes imposed on White Tuque’s income.
(d) Usage Limits. The License will be subject to any usage limits described in the Purchase Order or as otherwise communicated by White Tuque or Master Licensor. In the event that Client exceeds such usage limits, White Tuque reserves the right to (i) require that the Client pay the difference between the Fees payable hereunder and the fees which would have been payable if the Client had purchased the license type which would allow for such usage levels on account of the period during which such overages occurred; and/or (ii) increase the Fees for the Software for any subsequent Renewal Term to the level of the fees payable for the license type then available which would allow for the usage levels which occurred during the previous Term. In no event will Fees be reduced due to the Client using less than its usage limits.
(e) Increase of Fees. The Fees payable under the Purchase Order with respect to a Renewal Term may be modified by White Tuque on ten (10) days notice to the Client prior to the commencement of such Renewal Term.
Should the Client determine that the Software includes a defect or otherwise has questions or concerns relating to the Software, the Client may file error reports or support requests. White Tuque will accept voicemail, e-mail and web form-based incident submittal from the Client twenty-four (24) hours a day, seven days a week. White Tuque shall accept telephone calls for English language telephone support during its regular business hours. White Tuque shall use reasonable endeavours to process support requests, issue trouble ticket tracking numbers, if necessary, determine the source of the problem and respond to the Client. White Tuque shall use reasonable endeavours to respond to and resolve all support requests from the Client within the time periods specified below, according to priority.
White Tuque shall determine the priority of any incident in accordance with the following table.
The Software is completely inaccessible OR the Client Systems are being critically impacted by the Software. Priority 1 incidents shall be reported by telephone only.
Any other question or concern.
8. Services and Software Provided “As Is”. Except as specifically set forth herein, the Deployment Services and the Software are provided on an “as is” basis. Provision of the Software will require certain modifications to the Client Systems both on the initial set-up of the Software as well as on an ongoing basis. The Client acknowledges that White Tuque is not responsible for the interactions between the Software and the Client Systems. Client acknowledges and agrees that the Software is being provided to it by the Master Licensor directly and that White Tuque has no responsibility or liability whatsoever for any matter relating to the provision of the Software except with respect to its obligation to provide the Client the Access Right and the support services described in Section 7. The Client assumes sole responsibility for results obtained from the use of the Software, and for conclusions drawn from such use. White Tuque shall have no liability for any damage caused by errors or omissions in any information, instructions or scripts provided to White Tuque by the Client in connection with the Services or the Software, or any actions taken by White Tuque at the Client’s direction. The provisions of Section 7 state the Client’s full and exclusive right and remedy, and the Company’s only obligation and liability, in respect of the performance and availability of the Software, or its non-performance and non-availability. Except as specifically set forth herein or in the Master Agreement, the Client releases White Tuque from any and all liability arising from or in connection with any of the foregoing, including any liability related to the diminished capacity or failure of the Client Systems to function properly or any security or data breaches not originating in White Tuque’s hosting environment.
(a) Software Term. The Software Term will automatically renew for additional successive terms equal to the length of the initial Software Term or for the length of the renewal term set forth in the applicable Purchase Order, unless the Agreement is earlier terminated or either party gives the other party written notice of non-renewal with respect to such Component at least ten (10) days prior to the expiration of the then-current term (each a “Renewal Term” and together with the Initial Term, the “Term“).
(b) Termination. In addition to any other express termination right set forth in these Terms or the Master Agreement:
(i) White Tuque may terminate the Access Right, effective on written notice to Client, if Client: (A) fails to pay any amount when due hereunder; or (B) breaches any of its obligations under the Agreement;
(ii) either party may terminate the Access Right, effective on written notice to the other party, if the other party materially breaches the Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured ten (10) days after the non-breaching party provides the breaching party with written notice of such breach; or
(iii) either party may terminate the Access Right, effective immediately upon written notice to the other party, if the other party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
(c) Effect of Expiration or Termination. Upon expiration or earlier termination of the Access Right, the Client’s access to the Software shall cease. Additionally, the Client shall delete, destroy, or return all copies of the Documentation in its possession (if any). No expiration or termination will affect Client’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Client to any refund.
(d) Survival. The provisions of Sections 6, 8, 9, and 10 of these Terms and any other provision which, by its nature, would be reasonably expected to survive termination, shall survive any termination or expiration of the Agreement.
(a) Entire Agreement. These Terms, together with any other documents incorporated herein by reference or which incorporate these Terms by reference (which shall specifically include the Master Agreement and the Purchase Order(s)), constitutes the sole and entire agreement of White Tuque and the Client with respect to the subject matter of the Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter. In the event of any conflict between the provisions of these Terms, the Master Agreement, and / or the provisions of any Purchase Order, the following order of precedence shall apply: the Master Agreement, these Terms, and the Purchase Order(s) (unless the Purchase Order is explicitly agreed by the parties in writing to amend the Master Agreement or these Terms).
(b) Force Majeure. In no event shall White Tuque be liable to Client, or be deemed to have breached the provisions of the Agreement, for any failure or delay in performing its obligations under the Agreement, if and to the extent such failure or delay is caused by any circumstances beyond White Tuque’s reasonable control, including but not limited to acts of God, flood, fire, earthquake, explosion, epidemics, pandemics, including the 2019 novel coronavirus disease (COVID-19) pandemic, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (each, a “Force Majeure Event“).
(c) Amendments and Modifications. No amendment to or modification of the Agreement is effective unless it is in writing and signed by an authorized representative of each of White Tuque and the Client.
(d) Waiver. No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in these Terms, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from the Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
(e) Governing Law. The Agreement and all matters arising out of or relating to the Agreement are governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein without giving effect to any choice or conflict of law provision or rule. Any legal suit, action, litigation or proceeding of any kind whatsoever in any way arising out of, from or relating to the Agreement, including all statements of work, exhibits, schedules, attachments and appendices attached to the Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the Province of Ontario, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation or proceeding.
(f) Assignment. Client may not assign or transfer any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of White Tuque. White Tuque may assign and transfer its rights and delegate its obligations hereunder to any bona fide purchaser of White Tuque or substantially all of its assets. Any purported assignment, transfer, or delegation in violation of this Section is null and void. No assignment, transfer, or delegation will relieve the assigning or delegating party of any of its obligations hereunder. The Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.