Service Use Agreement

NOTICE OF LEGAL AGREEMENT: THIS SERVICE USE SUBSCRIPTION AGREEMENT (“AGREEMENT”), WITH ITS PRIVACY POLICY CONTAINED HEREIN, GOVERNS YOUR USAGE OF THE SaaS PLATFORM. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR BY EXECUTING THIS AGREEMENT BELOW, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “YOU” OR “YOUR” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SaaS PLATFORM. This Service Use Agreement is for Software as a Service (SaaS) you have purchased from CopperTree or any of its authorized affiliates. If you have purchased software as a standalone package, you are subject to CopperTree’s Software License Agreement.

1 Definitions

“Affiliate” means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control,” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.“Order Form” means the ordering documents for purchases hereunder, including addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.“SaaS Platform” means the online, Web-based applications and platform provided by Us that are ordered by You as part of this Agreement.“User Guide” means [*].“Users” means individuals who are authorized by You to use the SaaS Platform and who have been supplied user identifications and passwords. Users may include but are not limited to Your employees, consultants, contractors, and agents; or customers and other third parties with which You transact business.“We”,”Us” or “Our” means CopperTree Analytics, Inc.“You” or “Your” means the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity.“SaaS Platform” means the online, Web-based applications and platform provided by Us via kaizen.coppertreeanalytics.com, that are ordered by You as part of this Agreement.“Your Data” means all electronic data or information submitted by You to the SaaS Platform or collected by CopperTree tools and products for use by the SaaS platform.“Derivative Data” means any data or representation of data provided by the SaaS Platform.

2 SaaS Platform

2.1 Provision of SaaS Platform

We grant You a limited right to access and use the SaaS Platform. Note that are there multiple services or varied functionality that are available through the SaaS Platform, some of which are made available to each User. These services are pursuant to this Agreement and the relevant Order Forms during the subscription term set out in the Order Form. You agree that Your purchases here are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by Us regarding future functionality or features.

2.2 Subscriptions

Subscriptions shall be based upon the definitions and license parameters set forth in the applicable Order Form

3 Use of the SaaS Platform

3.1 Our Responsibilities

We shall:

  1. provide to You Standard Support for the SaaS Platform at no additional charge,
  2. use commercially reasonable efforts to make the SaaS Platform available 24 hours a day, 7 days a week, except for:
    1. planned downtime, of which We shall give notice in accordance with the requirements of the applicable CopperTree Analytics Inc. Support Terms via the SaaS Platform (We shall schedule planned downtime to the extent practicable during the weekend hours from 8:00 p.m. Pacific time Friday to 5:00 a.m. Pacific time Monday), or
    2. any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and
  3. provide the SaaS Platform only in accordance with applicable laws and government regulations.

3.2 Usage Limits

Services and Content are subject to usage limits, including, for example, the quantities spelled in Order Forms. Unless otherwise specified, (a) a quantity in an Order Form refers to data usage, and the Service or Content may not be used to store or access more than that amount of Data specified in the Order Form, and (b) the data may be used by multiple simultaneous Users. If You exceed a contractual usage limit, we may work with You to reduce Your usage so that it conforms to that limit. If, notwithstanding Our efforts, You are unable or unwilling to abide by a contractual usage limit, You will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Our request, and/or pay any invoice for excess usage in accordance with Section 6.2 (Invoicing and Payment).

3.3 Your Responsibilities

You shall

  1. be responsible for Users’ compliance with this Agreement,
  2. be solely responsible for the accuracy, quality, integrity, and legality of Your Data,
  3. use commercially reasonable efforts to prevent unauthorized access to or use of the SaaS Platform, and notify Us promptly of any such unauthorized access or use, and
  4. use the SaaS Platform only in accordance with Our guidelines and applicable laws and government regulations.

You shall not

  1. make the SaaS Platform available to anyone other than You or Users,
  2. sell, resell, rent or lease the SaaS Platform,
  3. use the SaaS Platform to store or transmit Malicious Code,
  4. interfere with or disrupt the integrity or performance of the SaaS Platform or third-party data contained therein,
  5. permit direct or indirect access to or use of any Service or Content in a way that circumvents a contractual usage limit, or
  6. attempt to gain unauthorized access to the SaaS Platform or their related systems or networks.

If You are in material breach of Your obligations as set forth in this Section, in addition to any of its other rights or remedies, We reserve the right to immediately suspend Your use of the SaaS Platform provided to You without liability to You, until such breach is cured.

3.4 Agency

If You operate as an Agency (Partner or Sub-Distributor), all terms and conditions of this Agreement shall apply to Your use of and access to the SaaS Platform and to any use and access by Your customers and other Users. In addition, (a) We will provide support with respect to the SaaS Platform directly to You in accordance with the support provisions of this Agreement and Our standard support policies, and (b) You will be responsible for all interface with and support to Your Users.

4 Proprietary Rights

4.1 Reservation of Rights

Subject to the limited rights expressly granted hereunder, We reserve all rights, title, and interest in and to the SaaS Platform, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein. You acknowledge that the SaaS Platform services provided by Us pursuant to this Agreement are owned solely by Us and made available to You pursuant to license in accordance with the terms and conditions of this Agreement.

4.2 Restrictions

You shall not

  1. permit any third party to access the SaaS Platform except as permitted herein or in an Order Form,
  2. create derivative works based on the SaaS Platform,
  3. copy, frame, or mirror any part or content of the SaaS Platform, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes,
  4. reverse engineer the SaaS Platform, or
  5. access the SaaS Platform in order to
    1. build a competitive product or service, or
    2. copy any features, functions, or graphics of the SaaS Platform.

4.3 Ownership of Your Data

As between Us and You, You exclusively own all rights, title, and interest in and to all of Your Data.

4.4 Suggestions

We shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual license to use or incorporate into the SaaS Platform any suggestions, enhancement requests, recommendations, or other feedback provided by You, including Users, relating to the operation of the SaaS Platform.

4.5 Derivative Data

We shall not disclose, distribute, or otherwise disseminate or share with any third parties any reports, analyses, or other derivative data (“Derivative Data”) created or received by You or any of Your Affiliates in connection with Your and Your Affiliates’ use of the SaaS Platform without your express permission. We will not assert any ownership of Derivative Data. You and Your Affiliates are entitled to access, export, manipulate, re-manipulate, protect, use, copy, display, and share with third parties any Derivative Data created by You or any of Your Affiliates from such data or content. You acknowledge and agree that We may access and use Derivative Data solely for purposes of performing anonymous statistical analyses on an aggregated basis with other Derivative Data; provided that at no time will You be identified to any third parties as the source or creator of such Derivative data and such Derivative Data shall not in any way be identified a Derivative Data created by You.

5 Confidentiality and Privacy

5.1 Definition of Confidential Information

As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Your Confidential Information shall include Your Data; Our Confidential Information shall include the SaaS Platform; and Confidential Information of each party shall include the terms and conditions of this Agreement and all Order Forms, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information (other than Your Data) shall not include any information that

  1. is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party,
  2. was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party,
  3. is received from a third party without breach of any obligation owed to the Disclosing Party, or
  4. was independently developed by the Receiving Party.

5.2 Protection of Confidential Information

Except as otherwise permitted in writing by the Disclosing Party,

  1. the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care) not to disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, and
  2. the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

5.3 Protection of Your Data

Without limiting the above, We shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Your Data, such as [encryption, firewalls …]. We shall not

  1. modify Your Data,
  2. disclose Your Data except as compelled by law or as expressly permitted in writing by You, or
  3. access Your Data except to provide the SaaS Platform or prevent or address service or technical problems, or at Your request in connection with customer support matters.

5.4 Location of Data

You acknowledge and agree that Your Data will be hosted on servers located at our data centres or at the data centres of our service providers that are located in the jurisdictions identified in the Order Form.

5.5 Privacy Policy

You acknowledge and agree that You have read and understood CopperTree Analytics’ Privacy Policy, hereby incorporated into this Agreement and located here: http://www.coppertreeanalytics.com/wp-content/uploads/2018/06/CopperTree-Analytics-Privacy-Policy.pdf

6 Warranties and Disclaimers

6.1 Our Warranties

We warrant that

  1. the SaaS Platform shall perform materially in accordance with the User Guide, and
  2. the functionality of the SaaS Platform will not be materially decreased during a subscription term.

For any breach of either such warranty, Your exclusive remedy shall be as provided in Section 9.3 (Termination for Cause) and Section 9.4 (Refund or Payment upon Termination) below.

6.2 Mutual Warranties

Each party represents and warrants that it has the legal power to enter into this Agreement.

6.3 Disclaimer

EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.

7 Liability

THE FOLLOWING DISCLAIMERS SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

7.1 Limitation of Liability

EXCEPT FOR DAMAGES ARISING FROM A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS SET FORTH IN SECTION 5, IN NO EVENT SHALL EITHER PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, EXCEED THE TOTAL AMOUNT PAID BY YOU IN THE 12 MONTHS PRECEDING THE INCIDENT. THE FOREGOING SHALL NOT LIMIT YOUR PAYMENT OBLIGATIONS.

IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

8 Term and Termination

8.1 Term of Agreement

This Agreement commences on the date You accept it and continues until all User subscriptions for the SaaS Platform granted in accordance with this Agreement have expired or been terminated.

8.2 Term of User Subscriptions

User subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Unless otherwise provided in the applicable Order Form,

  1. Services and Content are purchased as subscriptions,
  2. subscriptions may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and
  3. any added subscriptions will terminate on the same date as the underlying subscriptions.

8.3 Termination for Cause

A party may terminate this Agreement for cause:

  1. Upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or
  2. if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors.

8.4 Refund or Payment upon Termination

Upon any termination for cause by You, We shall refund You any prepaid fees covering the remainder of the term of all subscriptions after the effective date of termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all subscriptions under all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.

8.5 Return of Your Data

Upon request by You made within 30 days after the effective date of termination of a SaaS Platform subscription, We will make available to You for download a file of Your Data in comma-separated value (.csv). After such a 30-day period, We shall have no obligation to maintain or provide any of Your Data and shall thereafter, unless legally prohibited, delete all of Your Data in Our systems or otherwise in Our possession or under Our control.

9 High Risk Activities

The SaaS Platform is not fault-tolerant and is not designed, manufactured, or intended for use or reliance in any situation in which any partial or total failure of the SaaS Platform could lead to death, personal injury or severe physical or environmental damage, or for use or re-license as on-line control equipment in hazardous environments requiring to fail safe performance (collectively, “High Risk Activities”), such as (but without limitation) in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, life support machines, or weapons systems.

10 Other Terms

10.1 Governing Law

This Agreement will be governed by the laws of the Province of British Columbia, and the laws of Canada applicable therein. The courts of British Columbia will have the non-exclusive jurisdiction to entertain any action or proceeding brought by the parties in connection with this Agreement, and the parties each irrevocably submit to the jurisdiction of such courts.

10.2 Severability

Should any provisions of this Agreement subsequently be determined to be illegal or unenforceable, such provision will at that time be deemed omitted from this Agreement, and all other provisions will be unaffected and will continue in full force and effect.

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