These CoLab License Terms and Conditions (the “Terms and Conditions”) are entered into between the customer (“Customer”) named in the CoLab Product Order Form (the “Order Form”) and CoLab Software Inc., a Canadian corporation with an address at 251 E White Hills Road, St. John’s, NL, Canada, A1A 5N8 (“CoLab”). CoLab and Customer agree these Terms and Conditions together with all exhibits hereto and the Order Form represent the entire agreement (the “Agreement”) between the parties with respect to the subject matter of the Agreement. All terms capitalized but not defined in these Terms and Conditions shall have the meanings ascribed to them in the Order Form.
1. SAAS SERVICES AND SUPPORT
1.1. Subject to the terms of this Agreement, CoLab will use commercially reasonable efforts to provide Customer the Services in accordance with the Service Level Terms attached hereto as EXHIBIT B. As part of the registration process, Customer will identify an administrative user name and password for Customer’s CoLab account. CoLab reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2. Subject to the terms hereof, CoLab will provide Customer with reasonable technical support services in accordance with CoLab’s standard practice.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1. Customer will not, directly or indirectly: 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 Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by CoLab or authorized within the Services); use the Services or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; remove any proprietary notices or labels; circumvent or attempt to circumvent any security controls, authentication or access controls; or perform security testing in any form on any CoLab hosted/published/owned solutions, websites or APIs.
2.2. With respect to any downloadable Software that is distributed or provided to Customer for use on Customer premises or devices (the “Downloadable Software”), CoLab hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to download and use the Downloadable Software during the Term (defined herein) in connection with the Services (the “License”). Any use of the Downloadable Software other than in connection with the Services is not permitted. All terms of this Agreement apply to the License to the extent that such terms are applicable.
2.3. Customer represents, covenants, and warrants that Customer will use the Services only in compliance with CoLab’s standard published policies then in effect (the “Policy”) and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless CoLab against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although CoLab has no obligation to monitor Customer’s use of the Services, CoLab may do so and may prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
2.4. Customer shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Customer shall also be responsible for maintaining the security of the Equipment, Customer account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account or the Equipment with or without Customer’s knowledge or consent.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1. Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). Proprietary Information of CoLab includes, without limitation, non-public information regarding features, functionality and performance of the Services. Proprietary Information of Customer includes non-public data provided by Customer to CoLab to enable the provision of the Services (“Customer Data”). The Receiving Party agrees:
to take reasonable precautions to protect such Proprietary Information; and
not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information.
3.2. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after five (5) years following the disclosure thereof or any information that the Receiving Party can prove:
is or becomes generally available to the public;
was in its possession or known by it prior to receipt from the Disclosing Party
was rightfully disclosed to it without restriction by a third party;
was independently developed without use of any Proprietary Information of the Disclosing Party; or
is required to be disclosed by law.
3.3. 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 Services. CoLab shall own and retain all right, title and interest in and to:
the Services and Software, all improvements, enhancements or modifications thereto;
any software, applications, inventions or other technology developed in connection with support services; and
all intellectual property rights related to any of the foregoing.
3.4. 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 Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and CoLab will be free (during and after the term hereof) to:
use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other CoLab offerings; and
disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1. Customer shall subscribe for that number of licenses set out in the Order Form. At any time during the Term, the Customer may subscribe for additional licenses on an as-needed basis, in their sole discretion.
4.2. Customer will pay CoLab the Total Price for all Services described in the Order Form at the beginning of the initial Term. Customer will subsequently pay the Total Price for all Services currently subscribed for at the beginning of each Renewal Term. If the Customer subscribes for additional licenses during the Term, it shall: i) pay CoLab a pro-rated fee for such additional licenses calculated from the date on which the additional licenses are requested until the end of the then current year of the Term at the then current rate listed in Exhibit B (the “Additional Service Fees”); and ii) increase the Total Price accordingly for subsequent years in the Term. Additional Services Fees are due at the time the additional licenses are subscribed for. 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 costs in the manner provided herein. CoLab reserves the right to change the Pricing Model in Exhibit B or applicable charges and to institute new charges and fees at the end of the Initial Term or then-current renewal term, upon sixty (60) days prior notice to Customer (which may be sent by email). 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, in order to receive an adjustment or credit. Inquiries should be directed to CoLab’s customer support department.
4.3. CoLab may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by CoLab thirty (30) days after the mailing 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 and may result in immediate termination of Service. Customer shall be responsible for all taxes associated with Services other than taxes based on CoLab’s net income.
4.4. The rates described in Exhibit A in the Order Form shall increase by 3% upon the commencement of each Renewal Term to account for changes and enhancements to the CoLab platform.
5. TERM AND TERMINATION
In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice (or without notice in the case of nonpayment), if the other party materially breaches any of the terms or conditions of this Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
6. WARRANTY AND DISCLAIMER
CoLab shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. 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. HOWEVER, 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 SECTION, THE SERVICES ARE PROVIDED “AS IS” AND COLAB DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
7. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, COLAB AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY SUPPLIERS), OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT 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: (A) FOR 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) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND COLAB’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO COLAB FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT COLAB HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.1. 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.
8.2. 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.
8.3. 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.
8.4. No agency, partnership, joint venture, or employment 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.
8.5. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees.
8.6. 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.
8.7. This Agreement shall be governed by the laws of the Province of Newfoundland and Labrador 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 of the Province of Newfoundland and Labrador.
8.8. The parties shall work together in good faith to issue at least one mutually agreed upon press release within 90 days of the Subscription Start Date, and Customer otherwise agrees to reasonably cooperate with CoLab to serve as a reference account upon request.
8.9. Customer hereby grants CoLab the express right to use Customer's company name and logo in marketing, sales, financial, and public relations materials and other communications solely to identify Customer as a CoLab Software customer. CoLab hereby grants to Customer the express right to use CoLab's name and logo solely to identify CoLab as a provider of services to Customer. Other than as expressly stated herein, neither party shall use the other party's marks, codes, drawings or specifications without the prior written permission of the other party.
Service Level Terms
During the Term, CoLab will use 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. Service Provider and Customer hereby agree as follows:
“Downtime” means the time in which any service listed above 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 unavailability caused by scheduled maintenance of the platform used to provide the applicable service (CoLab will endeavour to provide seven days’ advance notice of service-affecting scheduled maintenance); or
Service unavailability caused by events outside of the direct control of Service Provider or its subcontractor(s), including any force majeure event, the failure or unavailability of Customer’s systems, the Internet, and the failure of any other technology or equipment used to connect to or access the service.
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 Service did not meet the Service Provider SLA, and include the following information:
the name, email address, and telephone number of the Customer’s designated contact; and
information supporting each claim of Downtime, including date, time, and a description of the incident and affected service, all of which must fall within the calendar month for which you are submitting a claim