Software Service Agreement

Last Updated: September 16, 2016.

PREAMBLE

PLEASE READ THIS AGREEMENT CAREFULLY. CAPITALIZED WORDS OR EXPRESSIONS SHALL HAVE THE MEANING ASCRIBED TO THEM IN THIS AGREEMENT. THIS IS AN AGREEMENT BETWEEN YOU AND IPERCEPTIONS EFFECTIVE AS OF THE EFFECTIVE DATE. THIS AGREEMENT GOVERNS THE USE OF THE WEBSITE, THE PLATFORM, THE SERVICES AND OTHER PRODUCTS AND SERVICES PROVIDED BY IPERCEPTIONS. BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, BY EXECUTING AN ORDER REFERENCING THIS AGREEMENT, OR BY REGISTERING TO THE SERVICES, YOU AGREE TO BE LEGALLY BOUND BY THE TERMS OF THIS AGREEMENT AND ANY SUPPLEMENTAL TERMS, IF APPLICABLE. YOU REPRESENT AND WARRANT THAT (I) YOU ARE 18 YEARS OF AGE OR OLDER, AND (II) YOU HAVE READ AND UNDERSTOOD THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE, YOU AND THE USERS SHALL NOT USE, VISIT, REGISTER OR OTHERWISE ACCESS THE WEBSITE, THE PLATFORM, THE SERVICES AND INFORMATION CONTAINED ON THE WEBSITE. IF YOU OR ANY USER IS LOCATED IN A COUNTRY EMBARGOED BY CANADA AND/OR UNITED STATES, OR IF YOU OR ANY USER IS ON THE U.S TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS, YOU AND THE USER ARE NOT PERMITTED TO USE, VISIT, REGISTER OR ACCESS THE WEBSITE, THE PLATFORM, THE SERVICES AND INFORMATION CONTAINED ON THE WEBSITE.

THE USE OF THE SERVICES OR ANY PART THEREOF MAY INVOLVE THIRD PARTY SERVICES GOVERNED BY SEPARATE AND/OR SUPPLEMENTARY TERMS APPLICABLE MORE SPECIFICALLY TO THEM. YOU MUST READ AND AGREE TO BE BOUND BY THESE TERMS AS A CONDITION OF USING THE SERVICES OF ANY SUCH THIRD-PARTY VENDOR. IF YOU ARE REPRESENTING AN AGENCY AND/OR A QUALIFIED CUSTOMER, THE SUPPLEMENTAL TERMS IN APPENDIX A ATTACHED HERETO SHALL APPLY, AND YOU HEREBY AGREE TO BE BOUND BY THESE SUPPLEMENTAL TERMS IN ADDITION TO THESE TERMS.



WHEREAS You desire to access and use the Services, and iPerceptions agrees to provide to You and to Your Authorized Users, subject to the terms of this Agreement, and Your and Your Authorized Users’ compliance with these terms.

The parties hereto agree as follows:

1. DEFINITIONS

Whenever used in this Agreement, the following terms shall have the meaning ascribed to them below, and all other terms not defined in this Section 1 shall have the meaning ascribed to them in this Agreement:

1.1    “Account” means the hosted account established by iPerceptions, or established by You for the purpose of administering Your Subscription and/or the Subscriptions of the Authorized Users, as applicable, and related activities which require (i) the completion of the registration process, including Your acceptance of the terms and conditions of this Agreement, and (ii) iPerceptions’ acceptance of such registration and granting of right to use the Services.


1.2    “Agency" shall have the meaning ascribed to it in the AS terms.


1.3    “Agency Supplemental Terms” or “AS terms” shall have the meaning ascribed to it in Appendix A attached hereto.


1.4    “Agreement” means this Software Service Agreement, the Order, the Proposal, and any other terms, conditions, rules, policies, agreements and documents which are incorporated by reference into this Agreement, as they may be amended or supplemented from time to time including, without limitation, the Agency Supplemental Terms in Appendix A attached hereto), and all Statements of Work, if any, which are and shall be incorporated into and deemed part hereof.


1.5    “Authorized Users” means the user licensees, including the Qualified Customers, if any, who have been granted a license by iPerceptions (directly, or through You solely to the extent expressly permitted by iPerceptions under this Agreement) to use the Services, who are Your employees or those of a Qualified Customer, if any.


1.6    “Confidential Information” shall have the meaning ascribed to it in Section 21.


1.7    “Content” means the information and data that You or Users upload or provide to iPerceptions in connection with the performance of Services by iPerceptions under this Agreement. Notwithstanding anything to the contrary in this Agreement, Content does not include 1) iPerceptions Technology, 2) Third Party Items, 3) content, information and data licensed or otherwise supplied to You or to the Authorized Users by iPerceptions or by any third party service provider, 4) any enrichment, improvement, or enhancement thereof (Sections 1.7 1) through 1.7 3) inclusively), and 5) any content, information and data collected by iPerceptions or by third party service providers pursuant to other agreements that You or other Authorized Users may have with iPerceptions. Nothing in the foregoing provision is intended to convert, or shall be construed as having converted, any iPerceptions Technology, or any part thereof or other content, information or data supplied by iPerceptions or its representatives into Content.


1.8    “Effective Date” means the date of acceptance by iPerceptions of Your first Order. Unless expressly provided otherwise by iPerceptions, the Effective Date of a subsequent Order shall be the date of acceptance by iPerceptions of that subsequent Order.


1.9    “Feedback” means feedback, comments, ideas, suggestions, enhancement requests, recommendations, concepts, know-how, techniques and changes or other feedback that You, any of the Users and/or any other party discloses or otherwise provides to iPerceptions, its affiliates, their respective employees, agents or contractors related to iPerceptions' products and/or services (including without limitation, the Services) and all related Intellectual Property Rights.


1.10    “Fees” shall have the meaning ascribed to it in Section 6.1.


1.11    “Intellectual Property Rights” means (i) patents (including utility models), copyright, database rights, data, compilations, know-how, designs, trade dress, trademarks and service marks (whether registered or unregistered), and related goodwill, as well as all proprietary rights (including trade secrets), and all rights of whatsoever nature in computer software (whether in source, object and executable code and including related documentation), and moral rights (including the rights of authorship and attribution and subsequent modification), (ii) all other intellectual property rights and similar or equivalent rights anywhere in the world which currently exist or are recognized in the future, and (iii) applications, extensions, and renewals in relation to any such rights.


1.12    “iPerceptions” means iPerceptions, Inc., located at 606 Rue Cathcart, #1007, Montreal, QC, Canada, H3B 1K9 or any other successor location, and its successors and assigns.


1.13    “iPerceptions Technology” means a) the Platform, b) the Software, c) the Proprietary Material, d) the Services, e) data, compilation of data (combined or not with Your data), data processing systems, transactional and performance data, f) any Feedback, g) any work results which arose or was conducted during the performance of the Services by iPerceptions, it affiliates or it agents, alone or with others, h) any know-how, trade-secrets, database, formulae, drawings, flow sheets, design, algorithm, method, records and procedures, technique, technical information, processes, modeling (including statistical modeling), manuals, research frameworks, and any other proprietary technology i) and (for each of the foregoing paragraphs a) through j) inclusively, all related modifications, enhancements or derivative works, and any and all related Intellectual Property Rights therein or related thereto.


1.14    “iPerceptions Trademarks” means graphics, logo, service marks, name or any other trade name, icon or mark identifying iPerceptions’ products and/or services (including the Services) and domain names that iPerceptions owns or licenses.


1.15    “Order” means the order that You or Your representative completed at the time You Subscribed to the Services, as more amply described in Section 5 hereof.


1.16    “Platform” means iPerceptions' Software as a Service ("SaaS") proprietary web-based technology platform, including Software, and related documentation, that are accessed via a web browser, and which enables, among others, online voice of customer projects. This expression includes upgrades, updates, improvements, modifications, derivative works, enhancements, and extensions therein or thereto, if any, to the Platform and will be made available to You if generally made available by iPerceptions to its customers, subject to additional fees, if any. iPerceptions will host and retain physical control over the hosted components of the Software and make it available only through the Platform.

1.17    “Privacy Policy” shall mean iPerceptions’ privacy policy which can be found by clicking on the “Privacy Policy” hypertext link located at the bottom of the respective Web page of the Website which may be changed in accordance with its terms and is incorporated herein by reference.


1.18    “Products and Services” shall have the meaning ascribed to in Section 18.


1.19    “Professional Services” shall have the meaning ascribed to it in Section 13.


1.20    “Proposal” means the proposal related to the Services that iPerceptions has submitted to You and has been accepted by You.


1.21    “Proprietary Material” means a) the Website (including all information and screens appearing on or used in connection with the Website, documents, website design, text, graphics, images and icons, as well as the arrangement thereof, its features, functions, programming techniques, any CSS, html, scripts, and other code), b) any documentation, manuals, reports (including Reports), support documentation, c) any information, including Confidential Information, information, content, material and tools, d) iPerceptions Trademarks, e) reports (including Reports), f) any other material provided or supplied by iPerceptions.


1.22    “Registration Information” means the information requested by iPerceptions during or in connection with Your registration, the registration of any other Authorized User, and related Accounts.


1.23    “Reports” means any report iPerceptions may deliver to You or to any Authorized User, as applicable, as part of Services and other custom-developed documents or tangible materials authored or prepared for You or any Authorized User by iPerceptions as part of the Services.


1.24    “Respondents” means survey respondents or other participants who interact with the Services as a result of such respondents’ or participants’ relationship with You.


1.25    “Services” means any products and services provided by iPerceptions including, the services accessible via the Platform, the Professional Services, if any, the Support Services, pre-release or beta Services, if any, studies, surveys, questions, reports (including Reports), and all other products and services provided by iPerceptions or any of its agents or partners to You and/or to any of the Users under this Agreement, including any supplemental product and services used with the Services to enable certain additional functions or features of the Services, excluding Third Party Services. This expression includes upgrades, updates, improvements, modifications, derivative works, enhancements, extensions therein or thereto, if any, to the Services, or any part thereof, and will be made available to You if generally made available by iPerceptions to its customers, subject to additional fees, if any.

1.26    “Software” means a) any source code and object code versions of hosted software products and tools, b) any scripts, application programmer interface (API), any in-App (for mobile, tablets, PC or other support), any Software Development Kit (SDK), any other software programs, and related documentation, and all upgrades, updates, improvements, modifications, derivative works, enhancements, extensions and revisions thereto, and except as otherwise provided in this Agreement, and c) Third Party Software, unless otherwise provided in this Agreement. Notwithstanding anything to the contrary in this Agreement, no provision under this Agreement shall obligate iPerceptions to deliver or otherwise make available any copies of computer programs or code from the Software, whether in object code or source code form.


1.27    “Statement of Work” or “SoW” shall have the meaning ascribed to it in Section 13.1 hereof.


1.28    “Subscription” means the subscription to an annual service plan and payment of the applicable Subscription Fees (except in respect of a free service plan or free trial for services) in accordance with the terms of this Agreement. Correlative or related capitalized words such as “Subscribed” and “Subscribers” and other similar capitalized words are references to this expression adapted to the context in which each of such words is used in this Agreement.


1.29    “Software Service Agreement” or “SSA” means this Software Service Agreement which may be amended in accordance with its terms.


1.30    “Term” means collectively the Initial Terms and the Renewal Term, if any, as these expressions are defined in section 22.1 hereof.


1.31    “Support Services” means the support services provided by iPerceptions to the extent provided in Section 16.


1.32    “Taxes” includes any taxes, duties, fees, premiums, assessments, imposts, levies and other charges of any kind whatsoever imposed by any governmental authority, including all interest, penalties, fines, additions to tax or other additional amounts imposed by any governmental authority in respect thereof, and including those levied on, or measured by, or referred to as, income, gross receipts, profits, capital, transfer, land transfer, sales, use, value-added, excise, stamp, withholding, business, franchising, property, development, occupancy, employer health, payroll, employment, health, social services, education and social security taxes, all surtaxes, all customs duties and import and export taxes, all license, franchise and registration fees.


1.33    “Term” shall have the meaning ascribed to it in Section 22.12.


1.34    “Terms of Use” means the online Terms of Use which can be found by clicking on the “Legal” or “Terms of Use” hypertext link located at the bottom of the respective Web page of the Website and are incorporated herein by reference.


1.35    “Third Party Items” means collectively Third Party Services, Third Party Software and Third Party Trademarks.


1.36    “Third Party Services” means third party services and/or websites which interoperate with the Services and are provided or operated by third-party entities or individuals. including any updates or upgrades thereto, if so provided pursuant to the terms of such third party services. For greater clarity, an Agency, as defined in the AS terms, and its services, are not Third Party Services as defined herein.


1.37    “Third Party Software” means standalone, online or offline software product made available by a third party vendor in connection with the Services, including any updates or upgrades thereto if so provided pursuant to the terms governing the use of such third party software.


1.38    “Third Party Trademarks” means the graphics, logos, service marks, and trade names, product names and brand names and domain names owned by a third party.


1.39    “Users” means You, the Authorized Users, the Respondents, and other users of the Website and/or Services, if any, as the case may be.


1.40    “You” or “Your” (i) this expression means you, individually if you are agreeing to enter this Agreement in Your own capacity, or (ii) if you enter this Agreement on behalf of a company, on behalf of an Agency or on behalf of a Qualified Customer, or any other legal entity, this expression means the company, the Agency, the Qualified Customer or any other legal entity for whose benefit you act. You, individual, hereby warrant and represent (without limiting the representations and warranties made under Section 17 of the SSA terms and Section 6 of Appendix A, if applicable) to have full legal authority to bind the company, the Agency, the Qualified Customer or any other legal entity, as applicable, in respect of the obligations contained in this Agreement.


1.41    “Your Trademarks” means the graphics, logos, service marks, and trade names, product names and brand names and domain names You own or You have the right to license.


1.42    “Website” means iPerceptions.com and any other website made available to You and Your Users and operated by iPerceptions or its authorized third party hosting entity acting on behalf of iPerceptions, and any and all sub-domains thereof.

2. REGISTRATION

2.1    Notwithstanding anything to the contrary in this Agreement, in order to use the Services, You must register, open a single Account per Authorized User, including a single Account for each Qualified Customer, as applicable, pay the required Fees for each Account and accept the terms of the Agreement.


2.2    You must provide current, complete and accurate Registration Information when You register or register any other Authorized User and keep this information updated during the Term, failing which iPerceptions may suspend and/or terminate any related Account. iPerceptions may, in its sole discretion, refuse any registration without any reason and any liability to You, to Your Users or to any other third party. For clarity, it is understood that, should any of Your employees or those of any Qualified Customer no longer be authorized to access an Account (for example, following a termination of employment), You shall close such Account or update the Registration Information with the name and contact information of the replacement of any such non authorized employee. 


2.3    For subsequent log-ins, You and each Authorized User, as applicable, must enter the required Log-in ID and password to authenticate the Account.


2.4    You and the other Authorized Users shall agree to keep in strict confidence and not share to any third party the non-transferable account information, Login-in ID, or the password provided to You by iPerceptions or that You or other Authorized Users may have created, as the case may be (“Account Information”). You agree to notify iPerceptions immediately about any unauthorized use or misuse of the Account Information or Platform by You, or any other Authorized User or any security incident related to the Services.

3. USE OF REGISTRATION INFORMATION

You agree that iPerceptions may, in its sole discretion, without liability to any User or any other third party, use the Registration Information (i) to administer your Account, including for transaction messages, billing, respond to customer service, support requests or other inquiries, or (ii) related to the Services, including service-related announcements, or (iii) to contact You in relation to any other products and services supplied by iPerceptions, its suppliers or partners. (Opting-out, see Section 14)

4. COMPLIANCE BY THE AUTHORIZED USERS

4.1    In addition to Your other obligations under this Agreement, You hereby agree to cause each Authorized User to use the Services in accordance with the terms of this Agreement and to abide by the terms of this Agreement and the terms of the Third Party Items, if any.


4.2    Without limiting the above, You and the defaulting Authorized User shall be jointly and severally liable for the failure of any such Authorized User to perform the obligations and duties under this Agreement and the terms of the Third Party Items, if any.

5. ORDER OF YOUR SERVICES

5.1    You can place an Order for any of the Services offered. Any Order placed by You is subject to iPerceptions' acceptance. iPerceptions may, in its sole discretion, refuse any Order without any reason and without any liability to You and to any other Users or party.


5.2    Unless otherwise expressly required by iPerceptions, each placed Order shall include the following information, (i) the Services requested; (ii) the Term; (iii) the Authorized Users, if any; and (iv) other relevant information as iPerceptions may reasonably request from time to time (“Order Information”). The Order Information is incorporated by reference into this Agreement.


5.3    You may place Orders on behalf of the Authorized Users and You hereby expressly acknowledge having read and agreed to the terms of this Agreement, including the obligations set forth in Section 4.


5.4    Any and all printed terms and conditions issued by You or Your representative, as part of or related to Your Order (“PO Terms”) shall be deemed null, void and of no effect between iPerceptions and You or any other party, notwithstanding anything to the contrary in said PO Terms. (For Professional Services, see Section 13)

6. FEES

6.1    In consideration of iPerceptions providing access to the Platform and Services during the Term, You agree to pay to iPerceptions the following non-refundable and non-creditable fees: (a) the yearly or multi-years fees, as applicable, for Your access and use of the Services available through Subscription; (b) any one-time or recurrent fee, if any, for specific features or additional Services; (c) the support fees related to the Services, if any, and (d) any other fees for Your Services (collectively the "Fees"). Your payment obligation includes the Fees for Your Account and the Account of the Authorized User.


6.2    The Fees for Your Account and the Account associated with each Authorized User are payable during the Term in accordance with the Services and payment options You have selected in Your Order as stated in Your Account or on the Website.


6.3    Except if expressly included in the Fees as indicated on the Website or otherwise, fees to access and use Third Party Items and any related taxes or other applicable charges, if any, shall be separate and additional fees to be paid in addition to the Fees.


6.4    Payment:

a)    You agree that iPerceptions may, in its sole discretion, charge Your credit card or bill You for all amounts owing for use of Services by You and other Authorized Users during the Term. You may change Your payment method to those available, which may be conditioned by Your prior approval of additional terms and conditions.


b)    You must timely pay all Fees when due and provide an updated valid credit card information with sufficient funds at the time of billing during the registration process and thereafter during the Term. iPerceptions reserves the right to seek validation of said card prior to Your first purchase and/or to obtain pre-approval for an amount up to the amount of Your purchase.


c)    If payment will be by a method other than a credit card, You must provide complete and accurate billing and contact information to iPerceptions and notify iPerceptions of any changes to such information. iPerceptions will invoice You in advance. Unless otherwise required by iPerceptions, payments shall be due upon receipt. 4) Without limiting the terms of Section 4, You are responsible for updating Your and the Authorized Users’ payment information as necessary, and for paying all Taxes. Any additional fee charged by Your credit card or any other intermediary You use, is Your sole responsibility.

6.5    Change in Rates, Services and Reassignments during the Term:

a)    iPerceptions may at any time, at its sole discretion, either temporarily or permanently, upon notice required by applicable law, change the Fees or any part thereof. Such change shall take effect immediately for any new Subscriber, and for existing Subscriber, at the time of the new billing cycle at the end the annual or multi-year commitment period, as applicable. If You do not agree to any price change, You must cancel, and You and other Users must stop using the Platform and Services before the beginning of the new annual or multi-year period, as applicable.


b)    You can change Your Subscription at any time Your Subscription by upgrading or downgrading your service plan. The new Fee for an upgraded service plan will take effect immediately, while any downgrade of the service plan will take effect at the end of the then current annual or multi-year billing period, as applicable, if the billing cycle of the service plan is on the basis of an annual or multi-year commitment, respectively.


c)    Authorized Users’ Accounts may, during the Term, be reassigned upon written permission of iPerceptions. The reassignment shall be valid only during the unexpired portion of the original term at the time of the reassignment, unless earlier terminated earlier in accordance with the terms of this Agreement. (For renewals, see Section 12 hereof.)

6.6    Taxes: All Taxes relating to iPerceptions’ Services under this Agreement shall be paid by You, except Canadian Taxes based on the income of iPerceptions and those taxes for which You provide iPerceptions with a valid tax exemption certificate or any other tax document to the same effect acceptable to iPerceptions and the applicable tax authorities. You shall pay to iPerceptions, in addition to the payment to which iPerceptions is otherwise entitled under this Agreement, such additional amount as is necessary to ensure that the net amount received by iPerceptions free and clear of all Taxes equals the full amount iPerceptions would have received had no such deduction or withholding been required. If applicable and required, You will deliver to iPerceptions a valid tax exemption certificate issued by each tax jurisdiction in which such certificate is required as a condition to the avoidance of sales or use taxes under this Agreement. You shall promptly notify iPerceptions of any amendment or revocation of that certificate, and will hold iPerceptions harmless from and against any costs, penalties or levies arising from the failure to hold the prescribed certificate. Without limiting the foregoing, each party will promptly notify the other party of any claim for Taxes asserted by applicable taxing authorities for which either party may be responsible. The parties agree to cooperate to the extent legally permissible.


6.7    False or Inaccurate Information: If the billing and contact information You provide is false, fraudulent or otherwise inaccurate, incomplete or not current, or if Your credit card is not valid or You do not have sufficient funds at the time of billing, or if Your Account is otherwise delinquent, iPerceptions may, in its sole discretion, immediately terminate or suspend the performance of the Services, or any part thereof, and/or the access to the Services by any and all Authorized Users without notice and liability to You, the Authorized Users or to any other party. In such case, You agree that iPerceptions may impose a charge to restore archived data or Content from all Accounts.


6.8    Late Payment Charges: All overdue accounts (except those charges under reasonable and good faith dispute) shall bear interest at the rate of 1.0% per month (12% per year) or the highest amount permitted by applicable law, from the due date until payment in full, along with any reasonable collection costs (including attorneys' fees) incurred by iPerceptions, if any. iPerceptions may use a third party to collect past due amounts and may condition future Subscription renewals or Orders on shorter payment terms.


6.9    Suspension: In the event that You or any Authorized User fail to pay fees to which iPerceptions is entitled under this Agreement and when due, and fail to cure such non-payment within ten (10) business days following iPerceptions' written notice of non-payment to You or to any Authorized User, iPerceptions shall be entitled to suspend the provision of any Services, through the Platform, or otherwise, for that particular Account, with no cost or liability to You, to any Users or any other party until such amounts are paid in full. Any suspension exercised by iPerceptions pursuant to this Section shall not preclude the exercise by iPerceptions of any other remedy. You agree that iPerceptions may impose documented charges to restore archived data from delinquent accounts.


6.10    Currency: Unless otherwise provided by iPerceptions on its Website or invoice, references to dollar amounts or other money amount shall be deemed to be in lawful money of the United States, and all amounts due shall be payable in US dollars.

7. OWNERSHIP

7.1    You acknowledge and agree that, notwithstanding anything to the contrary in this Agreement, iPerceptions, its affiliates and/or their respective suppliers solely and exclusively own and retain all right, title and interest in and to iPerceptions Technology. Subject to the limited rights expressly licensed under Section 8.1, iPerceptions and its suppliers reserves all rights, title and interest in and to the iPerceptions Technology. Notwithstanding anything to the contrary in this Agreement, including in any SoW, if any, nothing in this Agreement, shall, or shall be deemed or construed to, assign, transfer or convey to or vest in You, Your affiliates, the Users or any other individual or entity, any title, rights or interest in or to any intellectual property, including, without limitation, in or to the iPerceptions Technology, other than the licenses expressly granted under Section 8.1.


7.2    If You, Your affiliates, the Authorized Users and any of their respective employees or contractors, or other Users retains any interest in iPerceptions Technology for any reason, You hereby grant, assign and transfer, and You shall cause Your affiliates, the Authorized Users and any of their respective employees or contractors, or other Users to grant, assign and transfer to iPerceptions all right, title and interest in and to iPerceptions Technology and You hereby waive and shall cause to be waived any and all related moral rights in iPerceptions Technology, if any, to the exclusive benefit of iPerceptions. iPerceptions shall have the exclusive right to apply for or register any patents, copyrights, and such other intellectual proprietary protections with respect thereto, and You shall execute any such documents, render any such assistance and take such other action as iPerceptions may reasonably request, at iPerceptions' reasonable expense, to apply for, register, perfect, confirm and protect iPerceptions' rights therein. You shall cause any Authorized Users and any other individual or entity to the same as required.


7.3    You shall immediately provide iPerceptions with complete and accurate written notice of any use of, access to, disclosure of, reproduction, or transmission of any iPerceptions Technology or any part thereof that is in violation of the terms of this Agreement by any person of which You or any Authorized User becomes aware.


7.4    Subject to the rights granted by You under Section 9 hereof, You and the Authorized Users retain all right, title and interest to any and all Content, and Your Trademarks, if any.

8. IPERCEPTIONS LICENSE & RESTRICTIONS

8.1    Subject to the terms of this Agreement, including, the limitations and /or restrictions You and other Users are required to comply with, and in consideration of the payment of the fees for the Services, iPerceptions hereby grants to You and to the Authorized Users, during the Term, a personal, limited, non-exclusive, non-transferable, without the right to sub-license, revocable license to access and use the Services generated or enabled via the Platform and other Services You have ordered and paid for (except with respect to any free service plan or trial solely for Your and Your Authorized Users’ internal business needs). iPerceptions may deliver to You and the Authorized User, as applicable, Reports if included in Your Services. If so provided, subject to the terms of this Agreement, iPerceptions hereby grants to You a perpetual, limited, non-exclusive and non-transferable worldwide license to use, reproduce and display the Reports contents solely for Your and Your Authorized Users’ internal business needs.


8.2    Except as otherwise expressly provided or permitted in this Agreement, and except to the extent applicable laws preclude such activities from being prohibited by contract, in addition to the restrictions applying to You in the Privacy Policy and the Terms of Use, You shall not, and You shall cause other Authorized Users not, directly or indirectly,

a)    use the Website, the Platform, the Services, the Confidential Information disclosed or supplied by iPerceptions and the Report for any reason or manner other than as permitted under this Agreement;


b)    exceed the number of Authorized Users;


c)    lease, license, sublicense, rent, distribute, sell the iPerceptions Technology, or any part thereof, or the right to use or to have access the Website, the Platform or Services, or any part thereof, to others;


d)    modify, translate, or create derivative works based on the Platform, the Services or the Reports, or any part thereof;


e)    use the Platform or Services on a timeshare or service bureau basis, or host the Services on a subscription, membership or on-demand basis or otherwise for the benefit of any User or of any individual or entity;


f)    bundle or incorporate the Website, Platform, Services or any part thereof, with or into any other product or service;


g)    obfuscate, remove or alter any of the proprietary notices or legends or other notices or markings that are on or in the Website, the Platform, the Services, or the Reports;


h)    engage in any violation or infringement of intellectual property rights of any party, or breach of contract;


i)    monitor the performance or functionality of the Platform, Services or any part thereof, for benchmarking or competitive purpose;


j)    copy or imitate part or all of the design, reverse engineer, layout or look-and-feel of the Website, the Platform or Services;


k)    interfere with or disrupt the Website, the Platform or Services or servers, as determined by iPerceptions in its sole discretion;

l)    use or access the Website, the Platform or Services to harvest, to collect, or otherwise handle, or permit others to do the same, without obtaining the proper consents in breach of any privacy any other applicable laws;


m)    have unauthorized access to any copy of computer programs or code of the Platform, or any part thereof, whether in object code or source code form.

8.3    No Implied License Except for the licenses granted in Section 8.1, iPerceptions grants no express or implied license or other right under any patent, copyright, trademark, know-how or other intellectual property rights. iPerceptions reserves all rights not expressly granted.

9. YOUR LICENSE

You hereby grant to iPerceptions, and its affiliates, and their partners a worldwide, non-exclusive, royalty-free, sublicensable,

a)    license to use, collect, disclose, process, transfer, store the Content and all intellectual property rights with respect thereto for the purpose of iPerceptions, its suppliers and/or third party service providers providing the Services during the Term of this Agreement or thereafter with respect to any applicable survival clauses provided in this Agreement;


b)    license to use copy, publish, publicly display Your Trademarks and those of the Authorized Users and related intellectual property rights, and information relating to their respective organization, in digital or printed form, as part of the delivery of the Services under the terms of this Agreement to indicate on the Website and/or in iPerceptions’ promotional material that You and/or any of the Authorized Users is a customer or partner, as applicable, of iPerceptions until such time this Agreement expires or is terminated pursuant to its Terms. No other use of Your Trademarks or those of the Authorized Users is permitted without Your prior consent;


c)    transferable, perpetual and irrevocable license to publish, publicly display the trademarks, including logo, of any of iPerceptions’ partners and/or to create an active hyperlink on the survey questionnaire (including embedded surveys) or, invitation, and the right to redirect any Respondent to the website or service of this partner as part of the delivery of the Services, without any compensation, obligation or liability to You, the Respondents or to any other party;


d)    transferable, perpetual, irrevocable, with the right to sublicense, license to retain, reproduce, maintain, analyze, use, sell, offer to sell, distribute, modify, adapt, publish, publicly perform, display, translate or exploit any Content in aggregate form or not, combined or not with any other content or data, that does not reveal Your identity or the identity of the Authorized User, for any purposes whatsoever, including, without limitation, (a) to be part of iPerceptions’ or its suppliers’ or partner’s algorithms, processes or frameworks, (b) to derive any attitudinal or usage statistics, (c) to build models (including statistical modeling), (d) to produce or compile normative or comparative evaluations, including benchmark reports, or (e) to produce reports, papers (in digital format or others).

10. USER ACKNOWLEDGEMENT

Without limiting Sections 18, 19 and 20 hereof, You acknowledge and agree that:

a)     By using the Website, the Platform and/or the Services, You or other Users may be exposed to content (including Content) that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, libelous, vulgar, obscene, offensive, indecent, invasive of another's privacy, hateful, or racially, ethnically or otherwise objectionable.

b)    iPerceptions does not control the Content originating from You or other Users, of the Website, the Platform or Services and does not guarantee the accuracy, integrity or quality of such Content. Without limiting the foregoing, notwithstanding anything to the contrary in this Agreement, You and other Users assume and shall have sole and exclusive responsibility and risks for any content and any other information of the Users used and/or submitted in connection with this Agreement, including any reliance on the accuracy, completeness or usefulness of the foregoing, and iPerceptions shall have no responsibility, obligation and liability in connection thereto. iPerceptions may review all content and may block, modify, terminate access to, or remove any such content that iPerceptions considers, in its sole discretion, does not comply with any of the requirements of this Agreement but iPerceptions is not obligated to do so.


c)    iPerceptions reserves the right to purge content from its databases at any time and from time to time without notice. You acknowledge and agrees that You and other Users are solely responsible for backing up any content uploaded to the Website or received by You or other Users through the use of the Services or otherwise. iPerceptions shall not be liable to You and other Users or any other party for any purging, deletion, or failure to retain any such content.


d)    iPerceptions may disable Your Account and any other account and Your access and the access of other Authorized Users to use the Website, the Platform and/or the Services and iPerceptions may recover from You and/or other Authorized Users any losses, damages, costs or expenses incurred by iPerceptions resulting from or arising out of Your or other Authorized Users' non-compliance with any provision of this Agreement.


e)    iPerceptions may access, use, remove, preserve and/or disclose Your Account information and/or Content in connection with Your or other Authorized Users’ use of the Platform and/or Services in order to comply with applicable laws, any lawful access requests, subpoenas or other court orders, in order to protect the Platform and the Services, iPerceptions and its other users from fraud, security threats or breach of this Agreement by You or other Authorized Users or when iPerceptions has a good faith reason to believe it is necessary to do so.


f)    iPerceptions may transfer, store and process the Content or any part thereof in the country in which iPerceptions, its affiliates or its agents maintain facilities. You, on behalf of yourself and on behalf of and other Users, hereby consent to this disclosure, transfer, processing and storage of Your Content.

11. PRIVACY AND DATA PROTECTION

11.1    You agree that You and the other Authorized User when accessing and using the Website, the Platform and/or the Services, the terms of the Privacy Policy shall apply and You and the Authorized Users shall comply with all privacy and data protection laws, regulations and rules applicable.


11.2    iPerceptions may transfer Your and other Users’ personal information to outside parties in the following limited circumstances: (i) to carry out Your instructions (to third party payment providers to process Your payment information, for example, such as a credit card processing company to bill You for Services) or to provide Services when You signed up for or requested certain of our Services, or between iPerceptions entities or to their successors to provide the Services; (ii) to allow Third Party Service providers and/or vendors to fulfill operational, infrastructure, back-end or other administrative or support services; or (iii) under the limited circumstances that may be provided under this Agreement, the Privacy Policy or the Terms of Use.


11.3    If Your information changes, You may correct, update, export, share, publish Your survey data on Your account page at any time by logging in to Your Account, if any. Alternatively, or for other personal information, You may or You may request iPerceptions to correct, update, or delete Your information on Your behalf, by emailing our customer support service at the email address indicated on the Website.


11.4    iPerceptions will retain Your information for as long as Your Account is active, is needed to provide You Services, is required by law or as necessary to comply with our legal obligations, resolve disputes, and enforce our agreements.

12. CHANGES

12.1    Notwithstanding anything to the contrary in this Agreement (except and only to the extent provided otherwise under Section 6.5 of the SSA terms in respect of Change in Rates, Services and Reassignments during the Term), iPerceptions reserves the right to make changes to the Services and/or the terms of this Agreement as deemed necessary by iPerceptions.


12.2    If iPerceptions makes a change that materially degrades the performance or functionality of the Services or change a material term of this Agreement, iPerceptions will, in its sole discretion, inform You by either sending an email to the email address in Your Account or by posting a notice on any of its Websites. If You do not agree with the change, You must notify iPerceptions in accordance with the terms of this Agreement within ten (10) calendar days after receiving or after posting the change (“Refusal Period”), failing which You will be deemed having accepted such change and the change will be effective at the end of such Refusal Period. If iPerceptions receives the notice within the Refusal Period, iPerceptions’ sole obligation and liability to You and any other Users and Your and the other Users’ only remedy, will be for iPerceptions to refund You on a pro-rated basis the pre-paid fee for the remainder of the current Subscription Term (except if terminated by iPerceptions due to an uncured material breach of this Agreement by You or by any of the Authorized Users).

13. PROFESSIONAL SERVICES

13.1    Any customized services additional to the Services, such as, by way of example, the development of certain functionality and the integration of Third Party Items, performed by iPerceptions or its partners described in a Proposal and/or a statement of work (“Professional Services”) shall be provided in a separate executed Statement of Work referencing the terms of this Agreement for the Professional Services set forth in the statement of work (“Statement of Work” or “SoW”), unless otherwise agreed to in writing by iPerceptions.


13.2    Unless otherwise provided or accepted by iPerceptions, the SoW shall a) reference the terms of this Agreement; and b) describe the Services and deliverables, if any; and c) any other information iPerceptions may require.


13.3    Upon the execution and delivery by the parties of the SoW, the SoW shall be deemed attached as an Appendix to and made a part of this Agreement.

14. OPTING OUT OF COMMUNICATIONS

14.1    Except as expressly provided otherwise in this Agreement, You and other Authorized Users have the right after registering or ordering the Services to opt out from receiving future communications, You can contact us (see Contact Us section), or follow the unsubscribe instructions included in each promotional email, newsletter, or the like, sent to You by selecting the opt-out link in the email, or You may login to Your account, if any, and edit change to Your settings or profile online at iPerceptions Website.


14.2    As for any transactional communications or related information as provided in Section 3, generally, You and the Authorized Users may not opt-out of these transactional or service-related communications. If You do not wish to receive them, You and the Authorized Users have the option to deactivate Your Account.

15. THIRD PARTY ITEMS

15.1    You are responsible for obtaining and maintaining all computer hardware, software and communications equipment, Internet connectivity, needed to access the Website, the Platform and/or Services, if any, and for paying all third-party access charges (e.g., kiosk, ISP, telecommunications) incurred while using the Services.


15.2    During the Term, iPerceptions may make Third Party Items available to You and to other Users. iPerceptions does not endorse and, notwithstanding anything to the contrary in this Agreement, has no responsibility, liability or obligations whatsoever relating to said Third Party Items and does not warrant or support any such Third-Party Items whether or not designated as “certified” or otherwise by iPerceptions.


15.3    Without limiting the disclaimers and liability limitations under Sections 18 and 19, You accept the exclusive and sole responsibility for the access or use of the Third Party Items, and such access and use are at Your and the other Users’ own risks.


15.4    Without limiting Section 15.3, dealings between You and any third-party in connection with Third-Party Items are between You and such third party and/or its suppliers, including (i) Third Party Items providers may require to pay a fee in order to use said Third Party Items; and (ii). access and Use of the Third Party Items may be subject to Your acceptance of additional terms and conditions which governs said Third Party Items.

16. SUPPORT

16.1    Support Services are available to the extent provided under Your agreed upon Services, if any.


16.2    iPerceptions shall be under no obligation to provide You or any other party, hard-copy related documentation, upgrades, enhancements or modifications to the Platform and/or Services.


16.3    iPerceptions shall be under no obligation to provide You support for Third Party Items.


16.4    Support fees, if any, and support description are subject to change without notice.

17. YOUR REPRESENTATIONS

You hereby represent and warrant that,

a)    You have validly entered into this Agreement and have the legal power to do so; You have full legal authority to bind Your employer, the Agency, the Authorized Users and/or legal entity, as the case may be, if You are accepting on behalf of Your employer, the Agency, the Authorized Users and/or legal entity, as the case may be.

b)    If You are a corporation or other legal entity, this entity is validly formed and existing under the laws of its jurisdiction and it has duly authorized You to enter into this Agreement;

c)    You warrant that You and the other Users have the right to submit Content, and the use and publication of said Content and Feedback, if any, do not violate, infringe or misappropriate the intellectual property rights of a party or any third party. Furthermore, You own or control all of the necessary rights for the licenses granted by You in this Agreement;

d)    You, or any other Users, if an individual, are/is of the age of majority in his/her place of residence;

e)    You warrant that You and the other Users are not citizens of an embargoed country or a prohibited User under applicable Canadian, U.S., or other applicable country’s export and anti-terrorism laws, regulations and lists;

f)    Your and the Users’ use of the Website, the Platform and the Services is in strict accordance with the Privacy Policy, and with all applicable privacy and other laws and regulations;

g)    You and the other Users’ do not use the Website and Services for any unlawful purpose or purpose prohibited by this Agreement.

18. DISCLAIMER OF WARRANTIES

To the fullest extent permitted by law, iPerceptions Technology (and any work result thereof), all user survey or poll questions, responses or submission results thereto and all data or content obtained from or through the Website, the Platform or Services (collectively “Products and Services”) are provided to, and accepted by You and other users (including Users) on an ”as is", "with all faults", "as available" basis and without any endorsement, representation or warranty of any kind, and, without limiting the foregoing, iPerceptions, its affiliates, subsidiaries, service providers, directors, employees, agents, partners, suppliers expressly disclaim, with regard to the Products and Services, or any part thereof, all warranties and representations of any kind, either express or implied, or statutory, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose, accuracy, completeness, workmanlike effort, lack of negligence, quiet enjoyment, non-infringement, title, interoperability with any Third Party Items, or performance. Without limiting the foregoing, iPerceptions does not warrant nor represent that the exercise of the rights granted under this Agreement or that the use of the Products and Services, or any part thereof, whether embedded in your product or otherwise, will not infringe, directly, indirectly or by inducement, any patent, trademark, copyright or other right of third parties.

19. LIMITATION OF LIABILITY

You expressly understand and agree that iPerceptions, its affiliates, its subsidiaries, and their respective directors, officers, employees, agents, partners, service providers, suppliers, successors and assigns (“iPerceptions and Others”) shall not be liable for any indirect, special, consequential, punitive, multiple, exemplary, incidental or aggravated damages (including, without limitation, damages for the inability to use any service or software or access data, information or content, loss or corruption of information or data, loss of business, opportunity, profits or revenues, downtime, loss of the use of any of the Products and Services, failure to realize any expected savings, transmit or receive any data, business interruption, cost of procurement of substitute goods or service or the like), whether or not foreseeable, arising out of or related to this Agreement , the use of, or inability to use, performance or non-performance, of the Products and Services, or any part thereof, whether a claim for such damages is based on warranty, contract or tort (including negligence or strict liability) product liability or otherwise, even if an authorized representative of any of iPerceptions and Others is advised of the likelihood or possibility of such damages. Without limiting the foregoing, and notwithstanding anything to the contrary in this Agreement, in no event shall iPerceptions and Others be responsible or liable for (i) the actions or omissions of any third party supplier or vendor and shall have no liability for the use of Third Party Items; (ii) any use or misuse of any account by You or any other Authorized Users, including any and all activities associated with logins and passwords, (iii) any unauthorized access to or alteration of any transmissions or data, any material or data sent or received or not sent or not received, or any transactions entered into through the Website, the Platform or the Services or in reliance upon any information obtained through the use of the Website, the Platform or the Services; (iv) the use or performance of, the delay in providing, the failure to provide, or the inability to use or access to, the Website, the Platform, the Services or materials,(v) the deletion or accuracy, failure to store, transmit or receive transmission of any content, including Content; (vi) any information, software, products or services contained in or available through the Website, the Platform or Services, including information, software, products and services made available by other users of the said website, platform and services; (vii) the security, privacy, storage, or transmission of other communications originating with or involving use of Website, the Platform, the Services or any part thereof; or (viii) any threatening, defamatory, obscene, offensive or illegal content or conduct of any other party or any infringement or violation of a third party’s rights, including intellectual property rights. Notwithstanding any damages that You and other Users, including, without limitation, any Agency and any Qualified Customers, might incur for any reason whatsoever (including, without limitation, all damages referenced above and all direct or general damages), the entire liability of iPerceptions and Others under this Agreement and Your and the other Users' sole and exclusive remedy for all of the foregoing and the above shall be limited to the amounts actually paid by You to iPerceptions for the Services giving rise to that liability during (i) the then-current Term or (ii) three (3) months preceding the event or circumstances giving rise to such claim, whichever is less.The above limitations of liability shall apply to the maximum extent permitted by law.

20. INDEMNIFICATION

You, at Your sole and exclusive expense, agree to indemnify, hold harmless and defend iPerceptions, its affiliates, its subsidiaries, and their respective directors, officers, employees, representatives, suppliers, contractors, partners, service providers, their respective successors and assigns (each "Indemnified Party") from and against any and claims, demands, actions, proceedings or suit ("action") brought against any of the Indemnified Party and all liabilities, damages, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including, without limitation, settlement costs and attorneys' fees), relating to or arising from this Agreement, the use of the Products and Services, or any part thereof, including, without limitation, a) any violation by You or any of the Authorized Users of this Agreement, including any breach of the representations made in this Agreement, b) any breach of the Privacy Policy, Terms of Use or any breach of confidentiality as provided under Section 21, c) any Content submitted, posted or otherwise make available or obtained, stored through the use of the Website, the Platform and/ or the Services, d) any actual or alleged infringement or violation of intellectual property rights, including patent infringement, relating to or incurred in connection with the use of the Products and Services and/or Content, e) the failure to obtain all the required consents from the Users providing personally identifiable information in compliance with the applicable data and privacy laws and regulations, or violation of any such laws or regulations by Users or any other third party, f) any authorized or unauthorized use of any account or login information. Notwithstanding anything to the contrary herein, no compromise or settlement of any such third-party claim may be committed to by You or other Users without iPerceptions' prior written consent.

21. CONFIDENTIAL INFORMATION

21.1    By reason of the relationship hereunder, You will have access to certain information and materials concerning iPerceptions’ technology, business, plans, and customers that are confidential and of substantial value to iPerceptions, which value would be impaired if such information were disclosed to third parties (“Confidential Information”). Confidential Information of iPerceptions shall include, the features and functions of the Websites, the Platform or Services that are not available to the general public via the public internet (including screenshots of the same), future product plans, data or data files, any documentation or specifications, third party information, benchmarks, processes, strategies provided to You or to other Users, the commercial terms (including pricing) of this Agreement, Orders (but not the mere existence of this Agreement or any part thereof), performance and security test results (whether conducted by iPerceptions or by You or any other Authorized User), and any other proprietary, financial or business information supplied to You or any other User by iPerceptions or its representative.


21.2    Notwithstanding the foregoing, “Confidential Information” shall not include information that:

a)    You can show, by documented and competent evidence, was known by You prior to the disclosure thereof to it,

b)    is or becomes generally available to the public other than as a result of a disclosure directly or indirectly by You in breach of this Agreement,

c)    is or becomes available You on a non-confidential basis from a source other than iPerceptions and its representatives, provided that such source is not subject to any prohibition against transmitting the information to You,

d)    iPerceptions has authorized in writing the relevant disclosure or other use.

e)    You are required to disclose by applicable law or by a court of competent jurisdiction; provided, however, that You shall not make any such disclosure without first notifying iPerceptions and allowing You a reasonable opportunity to seek injunctive relief from (or a protective order with respect to) the obligation to make such disclosure.

21.3    You shall be permitted to use the Confidential Information of iPerceptions solely, and to the extent necessary in connection with the provision of Services by iPerceptions (“Purpose”).

21.4    You shall hold in confidence and shall protect the Confidential Information of iPerceptions from harm, loss, theft, reproduction and unauthorized access while in Your possession or control and You shall ensure that such Confidential Information is not disclosed, published, released, transferred or otherwise made available in any form to, for the use or benefit of, any third party except to the Your officers, directors, employees and those of the Authorized Users who need to know the Confidential Information and who are legally bound by restrictions at least as stringent as those set forth in this Agreement, whether pursuant to a contract, legal or fiduciary obligation of confidentiality, and only for the Purpose, and You may enforce such obligations in a diligent manner.

22. TERM AND RENEWAL

22.1    The initial term of this Agreement shall be the first annual or first multi-year period, as applicable, unless terminated earlier pursuant to its terms (“Initial Term”).


22.2    The Initial Term will be automatically renewed for same periods at the end of the Initial Term and at the end of each then current renewal period thereof, unless terminated earlier pursuant to its terms (“Renewal Term”) (“Initial Term” and “Renewal Term” collectively “Term”) at the then applicable Service fees, until either party notifies in writing the other party at least sixty (60) days prior to the end of the Initial Term or the then applicable renewal period of its intention not to renew, or to renew for a term that is not the same as the Initial Term or the applicable Renewal Term. If the fees payable for Services related to the Platform, any implementation or project to be performed are, in the aggregate, higher by five percent (5%) or more, excluding applicable taxes, compared to the previous ended period, and if You do not accept this increase of fees, You and other Authorized Users must stop using the Services within ten (10) calendar days of the renewal date (“Grace Period”). The continued use of the Services or any part thereof by You or any Authorized User after the Grace Period will be deemed acceptance of the new fees by You or the new Authorized User, as applicable.


22.3    If You cancel Your Subscription before the renewal date and You still use the Services after the renewal date, You will be obligated to pay the Fees applicable to such Services.


22.4    If You elected to use the Services for a free trial period and do not purchase a Subscription before the end of that period, this Agreement will terminate at the end of the free trial period. 


22.5    Unless otherwise agreed in writing by the parties, new Authorized Users purchased during any annual Term will have a prorated term ending on the last day of said annual Term.

23. TERMINATION

23.1    For paid services, iPerceptions may, in its sole discretion, in addition to all its other rights and remedies provided by this Agreement or by law, terminate this Agreement and any other license agreement between You and iPerceptions for any other related portion of the Services, suspend or restrict You and Your Users' access to the Services or any account, or any part thereof, temporarily or permanently, in any of the following circumstances:

a)    iPerceptions may, at any time and without cause, terminate this Agreement, any Statement of Work or any Order for convenience, without penalty, charge or liability of any kind upon giving You thirty (30) days’ prior written notice.


b)    For cause upon thirty (30) days written notice to You if You or an Authorized User is in material breach of this Agreement and such breach remains uncured at the expiration of such period, including, without limitation, if You failed to pay any fee or cost within thirty (30) days of becoming due.


c)    Without notice if You or any other Authorized Users become the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.


d)    Without notice, a) for security or technical reasons, b) the efficient operation of the Services, c) in the event of violations of this Agreement or illegal activities, or any other terms or policies that are referenced in this Agreement and/or posted on the Platform or Services, as determined in iPerceptions' sole judgment and discretion; or d) in the event Your or other Users' use of the Services may negatively impact other users of the Services.


e)    Without notice, if any sovereign entities or political subdivisions enacts legislation relating to the relationship created by this Agreement which grants rights to You or to any Authorized User which are not expressly granted by this Agreement (this Agreement shall be deemed to terminate automatically one day prior to the date such legislation becomes effective).


f)    Without notice following a request, an order for law enforcement, or iPerceptions is required to do so by law.


g)    Without notice if iPerceptions has elected to discontinue the Services or any part thereof.

23.2    For trials or free Services, Your right and the right of other Users to use the Services on a trial and/or free basis shall terminate immediately upon expiration of the trial period or at any time, by iPerceptions in its sole discretion, without notice.


23.3    Disclaimer iPerceptions will not be responsible or liable to You, or any other Users or third party for any loss and damage, compensation or claim, whether or not foreseeable, that may result or arise out of such termination, suspension or restriction of this Agreement, any other related license, and/or access to the Platform or Services.


23.4    You may terminate this Agreement and the Services, for cause upon thirty (30) days written notice of a material breach by iPerceptions if such breach remains uncured at the expiration of the thirty (30) day period.

24. EFFECTS OF TERMINATION

24.1    If You terminate this Agreement for cause pursuant to Section 23.2 (re: uncured material breach by iPerceptions), or if iPerceptions terminates for convenience pursuant to Section 23.1 1) a), iPerceptions shall refund You the prorated amount of the Subscription Fee prepaid by You that were to apply to the remainder of the unexpired Subscription Term, as calculated from the termination date through the remainder of the unexpired Subscription Term. Otherwise, Your sole remedy for iPerceptions’ breach of this Agreement shall be the termination of this Agreement.


24.2    Upon termination or expiration of this Agreement, for any reason, all licenses granted under this Agreement, and, all licenses related to Third Party Items, if any, will immediately cease and, You and all other Authorized Users will lose all access to the Platform and the Services, including, without limitation, to Your Account(s), email accounts, data and files. Upon such termination, iPerceptions retains the right, in its sole discretion,

a)    to provide You and other Authorized Users access to, and the ability to export Your Content for a commercially reasonable period of time at iPerceptions' then-current rates for the applicable service,


b)    unless legally prohibited, to permanently delete any files, programs, Content and email messages, associated with Your accounts, without notice to You. You hereby agrees to such deletion and agree that iPerceptions shall have no liability whatsoever for deletion of Your data pursuant to these terms,


c)    iPerceptions shall not be obliged to retain any of Your and other Users' Content or to provide the same to Users and delete the Users’ Content from its database, but may elect to do so in its sole discretion. Without limiting the foregoing, iPerceptions may keep Your and other Users’ Content as required by law or pursuant to any order from a court.

24.3    Upon request You will return or destroy and You shall cause to be returned or destroyed all Confidential Information provided by iPerceptions or its representatives or agents and any associated media. iPerceptions may ask You to provide written certification of the deletion and destruction.


24.4    The expiration or the termination of this Agreement will not relieve You of Your obligations to pay any accrued Fees and/or charges and will not affect any claim arising prior to such expiration or termination.

25. SURVIVAL

The following Sections of the SSA terms shall survive the expiration or earlier termination of this Agreement: Section 1 (Note: The definitions associated with the surviving clauses); Section 4 (Compliance by the Authorized Users); Section 6 (note: for the unpaid portion of the Subscription Fees, if any); Section 7 (Ownership); Section 8.2 (Restrictions), Section 8.3 (No Implied License), Sections 9 3) and 9 4) (Your License), Section 10 (User Acknowledgment), Section 11 (Privacy), Section 12 (Change), Section 15.3 (Third Party Items), Section 17 (Your Representations), Section 18 (Disclaimers of Warranties), Section 19 (Limitation of Liability), Section 20 (Indemnification), Section 21 (Confidentiality), Section 23.1 3) (Disclaimer), Section 24 (Effects of Termination), Section 25 (Survival), Section 26 (Export Controls), Section 27 (Links to Other Websites), Section 28 (General Provisions).

26. EXPORT CONTROLS

Your use of the Platform and Services, or any related technical information or materials, including posting, or uploading Your Content, software or other content via the Platform or Services, may be subject to the export, re-export, import and/or use controls laws and regulations of Canada, the United States and other countries, and You agree to comply with all such applicable laws and regulations.

27. LINKS TO OTHER WEBSITES

iPerceptions may provide references, frames or hyperlinks to internet websites maintained by third parties. iPerceptions does not warrant that it has reviewed such third party websites and makes no claims, representations or warranties regarding such third party websites or the contents of the same. iPerceptions is not responsible for, nor does it endorse or recommend, any products or services provided by such third parties through such third party websites or by any other means.

28. GENERAL PROVISIONS

28.1    Notices

a)    To iPerceptions: Any notice provided to iPerceptions pursuant to this Agreement should be sent to iPerceptions, Inc. 3575 Boulevard St-Laurent Suite 310 Montreal, Quebec H2X 2T7, Canada, Attention: Legal Counsel.


b)    To You: Unless otherwise provided in this Agreement, iPerceptions may, at its sole option, provide You with notices, including those regarding changes to this Agreement, by email, regular mail, text message, postings on or within any of the Websites or on or within the Services, if any.

28.2    Contact Us: If You have any question related to this Agreement, please email us at: info@iPerceptions.com, write or send Your fax at:

iPerceptions Inc.

606 Rue Cathcart, #1007
Montreal, QC
Canada
H3B 1K9


Fax: 514-484-2600
Attention: Information Officer.

28.3    Recourses – Attorneys' Fees: All rights, remedies and recourses set forth in this Agreement for the benefit of iPerceptions (including, without limitation, in the event of termination) shall be in addition and without prejudice to all other rights, remedies and recourses available to iPerceptions. Should iPerceptions resort to legal proceedings in connection with this Agreement, in the event iPerceptions prevails in such legal proceedings, iPerceptions shall be entitled, in addition to such other relief as may be granted, to recover its reasonable fees and costs in such legal proceedings from You and the Authorized Users, as applicable, including its reasonable attorney’s fees and costs.


28.4    Assignment: This Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns, but You and other Authorized Users may not assign or otherwise transfer their respective rights or obligations under this Agreement without receiving the express prior written consent of iPerceptions, which may be withheld in iPerceptions’ sole discretion. iPerceptions may assign this Agreement at any time without notice. Any assignment in violation of this Section shall be null and void. In respect of reassignment of Authorized Users, please refer to Section 6.5


28.5    Force Majeure: Except with regard to obligations to pay sums due hereunder, if any, neither party shall be held responsible for any delays or failure in performance caused in whole or in part by fires, strikes, floods, embargoes, labor disputes, delays or failures of subcontractors, acts of sabotage, riots, accidents, delays of carriers, voluntary or mandatory compliance with any governmental act, regulation or request, acts of God or by public enemy, or any other causes beyond the party’s reasonable control.


28.6    Applicable Laws: This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Province of Quebec and the federal laws of Canada applicable therein, without regard to its conflict of law provisions, and the parties irrevocably attorn to the jurisdiction of the courts of competent jurisdiction of Montreal in respect of all matters and disputes arising hereunder. The parties expressly exclude the application of the United Nations Convention on Contracts for the International Sale of Goods, and Section 2125 of the Civil Code of Quebec. To the extent it may be applicable, You expressly exclude any applicability of the Uniform Computer Information Transactions Act. Notwithstanding anything to the contrary in any statute or law to the contrary, and to the fullest extent permitted by law, You agree on Your behalf and on behalf of the other Users that any claim or cause of action arising out of or related to use of the Website, the Platform or the Services, or others, by You or by any of the other Users must be filed within one (1) year after such claim or cause of action arose or be forever barred. You represent and warrant that You have obtained the express consent for this time limitation from all other Users.


28.7    Severability: If any provision or part of any provision of this Agreement shall be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the remaining provisions or part of any provision shall remain in full force and effect and the illegal, invalid or unenforceable provisions or part of any provision shall be replaced by legal provisions or part of a provision carrying to the extent legally permissible, the intent of the parties as to such illegal, invalid or unenforceable provision or part of a provision.


28.8    No Waiver: The failure of a party to exercise any right, power or option given hereunder or to insist upon the strict compliance with the terms and conditions hereof by the other party shall not constitute a waiver of the terms and conditions of this Agreement with respect to that or any other or subsequent breach thereof nor a waiver by this party of its rights at any time thereafter to require strict compliance with all terms and conditions hereof including the terms or conditions with respect to which this party has failed to exercise such right, power or option. All waivers must be in writing and signed by a party waiving its rights.


28.9    Third Party Rights: Except as expressly provided otherwise in this Agreement, no term of this Agreement is intended to confer a benefit on, or to be enforceable by, any person who is not a party to this Agreement.


28.10    Complete Agreement: This Agreement constitutes the complete agreement between the parties with respect to its subject matter and supersedes and replaces all prior agreements, understandings, negotiations, and discussions, whether oral or written, between the parties in connection therewith.


28.11    Precedence: If there is any inconsistency between the documents that make up this Agreement, the documents will control in the following order and shall apply to the extent of the inconsistency:

a)    the terms of the Agency Supplemental Terms (if applicable);
b)    the terms of the SSA;
c)    the terms of an executed Statement of Work, unless iPerceptions expressly provide otherwise in the SoW with respect to such precedence;
d)    the Terms of Use and the Privacy Policy.

28.12    Independent Contractor: The parties are independent companies and neither the parties nor their employees and independent contractors will be considered an employee of the other party for any purpose, including but not limited to employee benefits, unemployment taxes, and income tax withholding at the source. Nothing herein shall create an expressed or implied partnership, agency, joint venture, employment or other association between the parties.


28.13    Interpretation: This Agreement will be interpreted fairly in accordance with its terms and without any strict construction in favor of or against either party. The headings used in this Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any terms of this Agreement. In this Agreement unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders. The use of the terms “includes” and “including”, and similar terms, shall be deemed not to limit what else might be included.
 
Appendix A - Agency Supplemental Terms

1. APPLICABILITY

These Agency Supplemental Terms or AS terms (as defined below), which apply only to Agencies and Qualified Customers, supplement, and to the extent they are inconsistent, supersede the SSA terms. All other terms of the SSA shall remain unchanged and in full force and effect. Capitalized terms used in the AS terms and not otherwise defined herein, shall have the meanings set forth in the SSA terms.

2. DEFINITIONS

2.1. “Agency” means any firm, corporation, partnership, company or other entity which is a Subscriber who has the authority to act on behalf of, and legally bind a Qualified Customer.

2.2. “Agency Supplemental Terms” or “AS terms” means the supplemental terms and conditions applicable to Agencies as set forth in this Appendix A, which may be amended or supplemented from time to time by iPerceptions.

2.3. “Discount Rate” means the discount rate provided to You in writing by iPerceptions in accordance with iPerceptions’ then applicable compensation policies for Agencies.

2.4. “Net Subscription Fees” means the Subscription Fees for all transactions concluded and documented by Agency as per the terms of this Agreement, less the corresponding Discount Rate, if any.

2.5. “Qualified Customer” means the customer of Agency (i) which is not (a) an existing customer of iPerceptions, including any affiliate of such customer, or (b) an affiliate, subsidiary or associated entity of Agency.

2.6. “Qualified Customer’s Trademarks” means the graphics, logos, service marks, and trade names, product names and brand names and domain names Qualified Customer owns or has the right to license.

3. DISCOUNT AVAILABLE TO AGENCY

3.1. As compensation for any new Subscription of a Qualified Customer delivered by Agency, iPerceptions will grant to Agency a coupon having a value equal to the Discount Rate.

3.2. No Discount Rate shall be payable (i) in relation to a customer who is (a) not a Qualified Customer (as defined herein), (ii) if the requirements of this Agreement are not satisfied by the Agency and the Qualified Customer; (iii) if the Services have been otherwise licensed to the prospective Qualified Customer by iPerceptions or through iPerceptions' sales channels (e.g., distributors or resellers), or (iv) if the software or service supplied to, or procured by, Agency is from a third party vendor.

4. FEES

As compensation for use and access to the Platform and the Services, Agency will pay, on behalf of each Qualified Customer, the Net Subscription Fees in accordance with Section 6 of the SSA terms.

5. INFORMATION - QUALIFIED CUSTOMER

Agency agrees to provide iPerceptions with accurate and complete billing and contact information as per Section 2 of the SSA terms.

6. REPRESENTATIONS AND WARRANTIES

In addition to the Agency’s representations and warranties contained in the SSA, Agency represents, warrants and covenants that (i) it has and will continue to have during the Term (and thereafter, with respect to the survival provisions) the full right, power and authority to enter into and fully perform the obligations, on behalf of itself and on behalf of each Qualified Customer, under this Agreement, including, without limitation, to enter into any contract and to bind each such Qualified Customer with all obligations, warranties and representations under this Agreement; (ii) it has not entered into nor will it enter into any agreements that would conflict with its obligations hereunder or render it incapable of satisfactorily performing hereunder; and (iii) it will not make any representations or warranties to Qualified Customers on behalf of iPerceptions.

7. ADDITIONAL REMEDY

In the event that, at any time during the Term, as solely and reasonably determined by iPerceptions: (i) Agency does not comply with any term of this Agreement, including, without limitation, the representations and warranties under Section 6 of the AS terms hereof, or (ii) Agency fails to cure any default in accordance with the terms of this Agreement, iPerceptions may, without prejudice to any remedies available to it and without any obligation or liability to Agency and to any other party, suspend or terminate this Agreement with Agency and directly enter into a Subscription with Qualified Customers under the then current Agreement terms, and Agency hereby agrees to assist iPerceptions in enter into such Subscription.

8. INDEMNIFICATION

Agency shall indemnify iPerceptions, its affiliates and their respective officers, employees, directors, shareholders and agents (each an "Indemnified Party" and collectively "Indemnified Parties") in respect of, and defend and hold each Indemnified Party harmless from and against, any and claims, demands, actions, proceedings or suit ("claim") brought against any of the Indemnified Parties and all liabilities, damages, losses, fines, penalties, judgments, awards, settlements, costs and expenses (including, without limitation, settlement costs and attorneys' fees), resulting from or arising out of the breach or alleged breach of the representations or warranties on the part of Agency under this Agreement. Notwithstanding anything to the contrary herein, no compromise or settlement of any such third-party claim may be committed to by Agency or any Qualified Customer without iPerceptions' prior written consent. In addition to the foregoing right to be defended, iPerceptions may obtain independent counsel to participate to such defense and/or settlement.

9. TERMINATION

9.1. In addition to the rights of termination provided under the SSA terms iPerceptions may, in addition to any other rights or remedies which may be available by this Agreement or by law, terminate this Agreement for convenience at any time, without cause, upon thirty (30) days prior written notice to the Agreement, and immediately if Agency or a Qualified Customer is in breach of its obligations under Section 6 (Representations and Warranties).

9.2. Any account which is suspended for more than thirty (30) days due to delinquent payments, may be terminated by iPerceptions with notice to the Agency and without any obligation on the part of iPerceptions to maintain or store any of Content.

9.3. Notwithstanding the foregoing, the expiration or termination of the Account of a Qualified Customer in accordance with its terms will not operate to terminate the Account of another Qualified Customer or this Agreement, unless terminated in accordance with their respective terms.

10. EFFECTS OF TERMINATION

10.1. Upon expiration or termination of this Agreement, for any reason,

(a) all licenses granted by iPerceptions under this Agreement shall terminate, and Agency and any and all Qualified Customers shall (i) cease all use of said licenses, including, without limitation, the use of the Services and any other use of iPerceptions Technology, if any, iPerceptions Trademarks and (ii) lose access to Agency's and Qualified Customers' Accounts.

(b) all licenses granted by Agency under this Agreement shall terminate and iPerceptions shall cease all use of said licenses including, without limitation, and Qualified Customer Trademarks, to the exception of the perpetual license granted under Sections 9 3) and 9 4) of the SSA terms.

10.2. Promptly after expiration or termination, each Party shall return or destroy iPerceptions' Confidential Information upon the expiration or termination, and certify, upon request, such return or destruction. iPerceptions and Agency will continue to cooperate thereafter in the issuance and execution of payment, issuance of invoices, all in accordance with this Agreement, solely with respect to any fee that is owed as of the date of expiration or termination of this Agreement pursuant to its terms.

11. SURVIVAL

In addition to the surviving provisions of the SSA terms as provided under Section 25 (Survival) of the SSA terms, the following Sections of the AS terms shall survive the expiration or termination of the Agreement: Section 1 (Applicability), Section 2 (Definitions), Section 4 (with respect to unpaid fees, if any), Section 6 (Representations and Warranties), Section 7 (Additional Remedy), Section 8 (Indemnification), Section 10 (Effect of Termination), Section 11 (Survival).