Last Updated: November 2023
This Subscription Agreement is entered into between Customer and CoLab Software Inc., a Canadian corporation with offices at 251 E White Hills Road, St. John’s, NL, Canada, A1A 5N8 (“CoLab”). Customer and CoLab may be referred to individually as “Party” or collectively as “Parties.”
The parties agree as follows:
DEFINITIONS
“Agreement” means this Subscription Agreement and any exhibits, schedules and addenda.
“CoLab Services” means the services ordered by Customer under an Order Form and made available by CoLab.
“Customer” means the customer named above which have which has signed Order Forms
“Customer Data” means electronic data and information submitted by or for Customer to the CoLab Services. Customer Data includes information submitted to CoLab by the Customer’s administrator for the purpose of assigning a User’s login credentials.
“Order Form” means an ordering document specifying the CoLab Services to be provided under this Subscription Agreement.
“Security Breach” means any unauthorized access to the CoLab Services or systems used to offer the CoLab Services, which results in the unauthorized processing of, access to or loss of Customer Data.
“User” means an individual who is authorized by the Customer to use the CoLab Services, for whom the Customer has purchased a subscription and to whom the Customer administrator has supplied a login and password.
CoLab and Customer agree this Agreement, together with any exhibits and the Order Form, represent the entire agreement between the Parties with respect to the subject matter of the Agreement. All terms capitalized but not defined in this Agreement shall have the meanings ascribed to them in the Order Form.
1. COLAB SERVICES AND SUPPORT
1.1. CoLab will make the CoLab Services available to the Customer in accordance with (i) the Service Level Terms attached as EXHIBIT A and (ii) all applicable laws and regulations, subject to Customer’s use of the CoLab Services in accordance with this Agreement, the Documentation and any Order Forms.
1.2. CoLab will provide Customer with standard technical support services at no additional charge in accordance with CoLab’s usual practice and/or upgraded support if purchased.
1.3 CoLab will not access, view or process Customer Data except (a) as provided for in this Agreement; (b) as authorized or instructed by Customer, (c) as required to perform its obligations under this Agreement; or (d) as required by applicable law or government agency.
1.4 CoLab will implement and maintain commercially reasonable administrative, physical and technical safeguards designed to prevent unauthorized access to, or unauthorized loss, alteration, or disclosure of, Customer Data. In the event of a Security Breach, CoLab shall notify Customer within 24 hours following CoLab’s confirmation of Security Breach and shall use commercially reasonable efforts, to contain such Security Breach and to secure at-risk Customer Data.
1.5 CoLab will be responsible for the performance of its employees and their compliance with CoLab’s obligations under this Agreement.
1.6 For Customers who use supported third-party software or applications, CoLab provides an optional extension which may be downloaded by Customer (“CoLab Add-On”) for use with certain third-party software and applications (“Third Party Services”). CoLab hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to download and use the CoLab Add-On during the Term in connection with the CoLab Services (the “License”). Any use of the CoLab Add-On other than in connection with the CoLab Services is not permitted. Any acquisition of the Third Party Services and any exchange of data between Customer and the Third Party Services is solely between the Customer and the Third Party Service. CoLab is not responsible for Customer’s use of Third Party Services or for any disclosure, modification or deletion of Customer Data resulting from Customer’s use of Third Party Services.
2. CUSTOMER RESPONSIBILITIES
2.1 Customer will access and use the CoLab Services in compliance with (i) all applicable laws and regulations, (ii) any agreements or terms of service between Customer and third parties, and (iii) in accordance with all CoLab policies which have been communicated to the Customer.
2.2 Customer agrees that it is liable for the legality, quality and accuracy of Customer Data, the means by which the Customer has acquired Customer Data and Customer’s use of the Customer Data with the Services and any third party software.
2.3 Customer will identify an administrative user name and password for Customer’s CoLab account. Customer is responsible for maintaining the security of its devices, systems, Customer account, User subscriptions, passwords (including but not limited to administrative and user passwords) and files, and is responsible for all use of Customer and User accounts with or without Customer’s knowledge or consent. Customer will use commercially reasonable efforts to prevent unauthorized access to or use of the Colab Services and will notify CoLab promptly of any such unauthorized access or use.
2.4 Customer is liable for (i) the actions of its Users in accessing and using the CoLab Services and (ii) Users’ compliance with this Agreement and any applicable laws.
2.5 Customer will not, directly or indirectly: (a) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the CoLab Services or any code, documentation or data related to the CoLab Services (all of the above, “Software”); (b) copy, frame, mirror, modify, translate, or create derivative works based on the CoLab Services or any Software; (c) sell, re-sell, license or share for a fee the CoLab Services; (d) remove any proprietary notices or labels; (e) circumvent or attempt to circumvent any security controls, authentication or access controls; or (f) perform security testing in any form on the CoLab Services, or any CoLab hosted/published/owned solutions, websites or APIs.
2.6 The number of User subscriptions are set out in an Order Form. CoLab Services may not be accessed by more than the number of Users ordered by Customer. Except as otherwise noted in an Order Form: (a) User subscriptions may only be assigned to individuals and (b) User’s password may not be shared with any other individual. User subscriptions may be reassigned to a new individual. If Customer exceeds the number of permitted Users, CoLab will work with Customer to address and remedy the issue.
2.7 Misuse of the CoLab Services may threaten the integrity or availability of the CoLab Services. While CoLab does not generally monitor Customer’s use of the CoLab Services, CoLab reserves the right, in its discretion and acting reasonably, to monitor Customer’s use of the CoLab Services if it believes Customer may be (or is alleged to be) in violation of this Section 2 and may suspend or terminate further use of the CoLab Services. CoLab will use commercially reasonable efforts to provide Customer with an opportunity to remedy such violation prior to suspension or termination.
2.8 From time to time, CoLab may make services and features not otherwise generally available and designated as beta, limited release, developer preview, or description of similar import (“NGA Services”) available to Customer. Use of the NGA Services is subject to the terms and conditions of this Agreement except for sections 7.1 and 8. In no event shall CoLab have any liability hereunder to Customer for any damages whatsoever, including but not limited to direct, indirect, special, incidental, punitive, or consequential damages, or damages based on lost profits, data or use, however caused and, whether in contract, tort or under any other theory of liability, whether or not Customer has been advised of the possibility of such damages unless such disclaimer of liability is not enforceable under applicable law in which case CoLab’s liability with respect to this agreement shall not exceed $100.00. CoLab does not warrant or represent that NGA Services will become generally available. Customer agrees that CoLab, in its sole discretion, may (a) terminate the NGA Services or (b) terminate Customer’s access to the NGA Services or any part thereof. CoLab will endeavour to give prior notice of termination of the NGA Services or Customer’s access to same. Customer agrees that CoLab will not be liable to Customer or any third party for such termination. Any Customer Data entered into the NGA Services will be permanently lost upon the suspension or termination of the NGA Services. Customer is solely responsible for exporting Customer Data from the NGA Services.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of the disclosure. Confidential Information of CoLab includes, without limitation, non-public information regarding business and marketing plans, pricing, roadmaps, features, pricing, functionality and performance of the Services, and the terms and conditions of this Agreement. Confidential Information of Customer includes the Customer Data. The Receiving Party agrees (a) to take reasonable precautions to protect such Confidential Information and (b) not to use (except in providing or using the Colab Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.
3.2 Confidential Information does not include any information that: (a) is or becomes generally available to the public (with the exception of personally identifiable information contained in Customer Data); (b) was in its possession or known by it prior to receipt from the Disclosing Party; (c) was rightfully disclosed to it without restriction by a third party; (d) was independently developed without use of any Proprietary Information of the Disclosing Party; or (e) is required to be disclosed by law.
3.3 The Receiving Party agrees that it shall only use Confidential Information of the Disclosing Party for the purpose of accessing or providing the CoLab Services or as otherwise permitted by the scope of this Agreement. The Receiving Party agrees to take all necessary and appropriate steps to keep confidential, and protect, the Disclosing Party's Confidential Information, including by: (i) restricting access to all Confidential Information received from the Disclosing Party to those employees of the Receiving Party who need access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party; and (ii) not using, disclosing, or allowing access to Confidential Information received by it to any third party, except as authorized by the Disclosing Party in writing. Should Receiving Party receive a request for disclosure of any Confidential Information, Receiving Party shall (a) inform Disclosing Party, to the extent that it is able to do so, in order for Disclosing Party to, in its discretion, contest the disclosure of the Confidential Information and (b) only disclose the minimal amount of Confidential Information necessary.
3.4 As between the parties, each party retains all ownership rights in and to its Confidential Information. Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its affiliates, legal counsel and accountants without the other party’s express written consent, provided that a party that makes any such disclosure to its affiliate, legal counsel or accountants will remain responsible for such affiliates, legal counsel’s or accountants’ compliance with this “Confidentiality” section.
3.5 Customer shall own all rights, title and interest in and to the Customer Data, as well as any data that is based on or derived from the Customer Data and provided to Customer as part of the CoLab Services. Customer grants CoLab a worldwide, limited term license to host, copy, transmit and display Customer Data as necessary in order for CoLab to provide the CoLab Services.
3.6 CoLab shall own and retain all right, title and interest in and to; (a) the CoLab Services and software, and all improvements, enhancements or modifications thereto; (b) any software, applications, inventions or other technology developed in connection with support services; and (c) all intellectual property rights related to any of the foregoing.
3.7 Notwithstanding anything to the contrary, CoLab shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the CoLab Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom). CoLab will be free (during and after the Term) to: (a) use such information and data to improve and enhance the CoLab Services and for other development, diagnostic and corrective purposes in connection with the CoLab Services and other CoLab offerings; and (b) disclose such data solely in aggregate or other de-identified form in connection with its business.
3.8 In the course of using the CoLab Services, Customer or its Users may provide CoLab with feedback and suggestions regarding the CoLab Service. Customer hereby assigns to CoLab ownership in all such feedback and suggestions and all rights therein, including all intellectual property and moral rights, without any royalty or accounting obligations.
3.9 CoLab grants to Customer the right to use CoLab's name and trademarks solely to identify CoLab as a provider of the Colab Services to Customer. Customer grants CoLab the right to use Customer's company name and trademarks in marketing, sales, and public relations materials (including use on CoLab’s website) solely to identify Customer as a CoLab Services customer. Other than as expressly stated herein, neither party shall use the other party's trademarks without the prior written permission of the other party. Any trademark usage shall be in accordance with the Party’s trademark usage guide.
3.10 No other rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 The CoLab Services are purchased as subscriptions and are subject to the quantities and limits set out in the Order Forms. Payment obligations are non-cancelable and quantities purchased cannot be decreased during the relevant subscription term.
4.2 Unless otherwise specified in an Order Form, Customer will pay CoLab the Total price for all CoLab Services described in the Order Form at the beginning of the Initial Term. Customer will subsequently pay the Total price for all CoLab Services currently subscribed at the beginning of each Renewal Term.
4.3 At any time during the Term, Customer may subscribe for additional subscriptions at the same pricing as the underlying subscription pricing, pro-rated for the portion of the subscription term remaining at the time the subscriptions are ordered. Any additional subscriptions will renew, or terminate, on the same date as the underlying subscriptions. If the Customer otherwise incurs the payment of additional fees or costs (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees or cost.
4.4 Full payment for invoices issued in any given month must be received by CoLab thirty (30) days after the date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection. Failure to pay outstanding balances shall result in suspension or termination of CoLab Services. CoLab’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature including, for example, HST GST, sales, use or withholding taxes (“Taxes”). Customer shall be responsible for all Taxes associated with Services other than Taxes based on CoLab’s net income, property and employees for which CoLab is solely responsible.
4.5 Customer shall supply CoLab with its billing contact information upon registration. Customer is responsible for maintaining accurate billing contact information. If Customer believes that CoLab has billed Customer incorrectly, Customer must contact CoLab no later than 60 days after the closing date on the first billing statement in which the error or problem appeared.
5. TERM AND TERMINATION
5.1 This Agreement commences on the Effective Date and continues until all subscriptions have expired or been terminated.
5.2 The Term of each subscription shall be as specified in the Order Form. Unless otherwise specified in the Order Form, subscriptions shall automatically renew for one year (the “Renewal Term”), unless either Party gives the other Party notice of non-renewal at least 30 days before the end of the relevant subscription term. Upon the commencement of the Renewal Term, CoLab may increase the rates described in the Order Form by up to 7% above the applicable pricing in the prior term, provided CoLab notifies Customer of different pricing, or new charges and fees at least 60 days prior to the applicable Renewal Term (which may be sent by email).
5.3 In addition to any other remedies it may have, either Party may terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if (a) the other Party materially breaches any of the terms or conditions of this Agreement and such breach has not been cured within the thirty (30) day notice period or (b) the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
5.4 If this Agreement is terminated by Customer in accordance with Section 5.3, CoLab will refund Customer any prepaid fees covering the remainder of the Term. If this Agreement is terminated by CoLab in accordance with Section 5.3, Customer will pay in full for the CoLab Services up to and including the last day of the Term and shall not be entitled to any refund.
5.5 Upon request by Customer made within 30 days after the effective date of termination or expiration of this Agreement, CoLab shall deliver to Customer, at no cost to Customer, a copy of all Customer Data in a mutually agreed-upon format. After that thirty-day period, CoLab shall erase and/or destroy all copies of Customer Data in CoLab’s possession.
6. WARRANTY AND DISCLAIMER
6.1 CoLab shall use reasonable efforts consistent with prevailing industry standards to maintain and provide the CoLab Services in a manner which minimizes errors and interruptions in the CoLab Services. CoLab will not materially decrease the functionality of the CoLab Services during the applicable subscription Term. For any breach of these warranties, Customer’s exclusive remedy is that described in the Termination section above.
6.2 COLAB DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, THE SERVICES ARE PROVIDED “AS IS” AND NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE EXTENT PERMITTED BY LAW.
7. INDEMNIFICATION
7.1 CoLab will indemnify and defend Customer (including any affiliates), its respective officers, directors, employees, agents, contractors, successors, and assigns against any claim, demand, suit or proceeding brought against Customer by a third party alleging that (a) the CoLab Services infringe any such third party’s intellectual property rights or (b) the CoLab Services, as generally provided, breaches applicable laws or (c) for damages arising from a Security Breach (each, a “Claim”) CoLab will indemnify Customer from any damages, attorney’s fees and costs finally awarded against Customer as a result, or for amounts paid by Customer under a settlement approved by CoLab. CoLab will indemnify and defend against a Claim only to the extent such Claim is based on or arises from or relates to an action solely attributable to CoLab.
7.2 Customer will indemnify and defend CoLab (including any affiliates), its respective officers, directors, employees, agents, contractors, successors, and assigns against any claim, demand, suit or proceeding brought against CoLab by a third party (a) arising from Customer’s use of the CoLab Services (i) in breach of this Agreement or applicable law or (ii) in breach of an agreement between a third party and Customer; or (b) alleging that Customer’s use of Customer Data with the CoLab Services (i) infringes the intellectual property rights of a third party or (ii) violates any government laws, guidance, rules or regulations (each, a “Claim”) or (c) for damages arising from a Security Breach. Customer will indemnify CoLab from any damages, attorney’s fees and costs finally awarded against CoLab as a result, or for amounts paid by CoLab under a settlement approved by Customer. Customer will indemnify and defend against a Claim to the extent such Claim is based on or arises from or relates to an action solely attributable to Customer.
7.3 As a condition to such indemnification, the indemnified Party will provide the indemnifying Party with written notice of such claim. Neither Party will enter into any settlement or compromise of any such claim without the indemnifying Party’s prior written consent. The indemnifying Party may assume the exclusive defense and control of any matter subject to indemnification. In all events, each Party will cooperate with the other in the defense of any claim.
8. LIMITATION OF LIABILITY
8.1 Except for damages arising from a Security Breach, in no event shall the aggregate liability of either Party exceed the fees paid by Customer for the CoLab Services under this Agreement in the 12 months prior to the act that gave rise to the liability, in each case, whether or not the Parties have been advised of the possibility of such damages. The foregoing limitation will apply whether an action is in contract or in tort and regardless of the theory of liability. The foregoing shall not limit Customer’s obligations under Section 4 (Payment of Fees).
8.2 In no event will either Party, its officers, affiliates, representatives, contractors and employees be responsible or liable with respect to any subject matter of this Agreement or terms and conditions related thereto under any contract, negligence, strict liability or other theory for: (a) error or interruption of use or for loss or inaccuracy or corruption of data or cost of procurement of substitute goods, services or technology or loss of business; (b) any indirect, exemplary, incidental, special or consequential damages; or (c) any damages arising from a matter beyond a Party’s reasonable control.
9. MISCELLANEOUS
9.1 The CoLab Services may be subject to export laws and regulations of Canada, the United States and other jurisdictions. CoLab and Customer each represent that it is not on any government denied-party list. Customer will not permit any User to access or use the CoLab Services in a Canada- or US-embargoed country or region or in violation of any Canadian or American sanction, export law or regulation.
9.2 Neither Party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other Party in connection with this Agreement.
9.3 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
9.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment (Section 4), confidentiality obligations (Section 3), warranty disclaimers (Section 6), and limitations of liability (Section 8).
9.5 This Agreement is not assignable, transferable or sublicensable by Customer except with CoLab’s prior written consent. CoLab may transfer and assign any of its rights and obligations under this Agreement without consent.
9.6 This Agreement is the complete and exclusive statement of the mutual understanding of the Parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein. The Parties agree that terms or conditions contained in order documentation presented by Customer are void. In the event of any conflict or inconsistency between the following documents, the order of precedence shall be: (1) the applicable Order Form and (2) the Agreement.
9.7 No agency, partnership, or joint venture is created as a result of this Agreement and Customer does not have any authority of any kind to bind CoLab in any respect whatsoever.
9.8 There are no third party beneficiaries to this Agreement.
9.9 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.
9.10 This Agreement shall be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein without regard to its conflict of laws provisions. The parties hereby attorn to the jurisdiction of the courts located in Toronto, Ontario.
Service Level Terms
CoLab Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by CoLab or by third-party providers, or because of other causes beyond CoLab’s reasonable control, but CoLab shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption
During the Term, CoLab will use commercially reasonable efforts to achieve a Monthly Uptime Percentage of at least 99.5% for any calendar month excluding holidays and weekends and scheduled maintenance (“Service Provider SLA”). If CoLab does not meet the Service Provider SLA, and so long as Customer’s account is current, Customer will be eligible to receive the credits described below. These credits are Customer’s exclusive remedy for any failure by CoLab to meet the Service Provider SLA.
CoLab and Customer hereby agree as follows:
“Downtime” means the time in which any CoLab Service is not capable of being accessed or used by the Customer, as monitored by CoLab.
“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus the number of minutes of Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.
“Exclusion from Downtime” The following are not counted as Downtime for the purpose of calculating Monthly Uptime Percentage:
Service Credits
Credits are issued as a financial reimbursement if CoLab does not meet the Service Provider SLA for a particular month of the ordered term. Upon approval of a claim we will provide the applicable remedy set forth below:
Claim Procedure
To receive a service credit for a particular calendar month, Customer must submit a claim by email to the support team within 30 days of the end of the month during which the CoLab Services did not meet the Service Provider SLA, and include the following information:
