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Master Subscription Agreement

MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT GOVERNS CLIENT’S ACQUISITION AND USE OF UNION 1 SERVICES.  CAPITALIZED TERMS HAVE THE DEFINITIONS SET FORTH HEREIN.

IF CLIENT REGISTERS FOR A FREE TRIAL OF UNION 1 SERVICES OR FOR FREE SERVICES, THE APPLICABLE PROVISIONS OF THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL OR THOSE FREE SERVICES.

BY ACCEPTING THIS AGREEMENT, BY (1) CLICKING A BOX INDICATING ACCEPTANCE, (2) EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, OR (3) USING FREE SERVICES, CLIENT AGREES TO THE TERMS OF THIS AGREEMENT.  THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS ACCEPTING ON BEHALF OF A UNION OR OTHER LEGAL ENTITY REPRESENTS THAT THEY HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THESE TERMS AND CONDITIONS.  IF THE INDIVIDUAL ACCEPTING THIS AGREEMENT DOES NOT HAVE SUCH AUTHORITY, OR DOES NOT AGREE WITH THESE TERMS AND CONDITIONS, SUCH INDIVIDUAL MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.

The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.

Union 1’s direct competitors are prohibited from accessing the Services, except with Union 1’s prior written consent.  

This Agreement was last updated on November 1, 2019.  It is effective between Client and Union 1 as of the date of Client’s accepting this Agreement.

1. DEFINITIONS

“Affiliate” means any entity that 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.

“Agreement” means this Master Subscription Agreement.

 “Content” means information obtained by Union 1 from publicly available sources or its third-party content providers and made available to Client through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.

“Client” means, the union or other legal entity for which the applicable individual is accepting this Agreement on behalf of.

“Client Data” means electronic data and information submitted by or for Client to the Services, excluding Content and Non-Union 1 Applications.

“Documentation” means the applicable Service’s documentation at https://uniondigital.ca/company/legal/ and its policies, as updated from time to time, accessible via https://uniondigital.ca/company/legal/ or login to the applicable Service.

“Free Services” means Services that Union 1 makes available to Client free of charge.  Free Services exclude Services offered as a free trial and Purchased Services.

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including but not limited to, for example, viruses, worms, time bombs and Trojan horses.

“Marketplace” means an online directory, catalog or marketplace of applications that interoperate with the Services, including, for example, https://uniondigital.ca or any successor websites.

“Non-Union 1 Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Client or a third party and/or listed on a Marketplace or under similar designation.  Non-Union 1 Applications, other than those obtained or provided by Client, will be identifiable as such.

“Order Form” means an ordering document or online order specifying the Services to be provided hereunder that is entered into between Client and Union 1 or any of their Affiliates, including any addenda and supplements thereto.  By entering into an Order Form hereunder, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.

“Personal Information” means any information which, on its own or when reasonably combined with other available information, relates to an identifiable individual.

“Privacy Laws” means all federal, provincial, state, municipal or other applicable statutes, laws or regulations of any governmental or regulatory authority in any jurisdiction governing the collection, use or disclosure of information about an identifiable individual.

“Purchased Services” means Services that Client or Client’s Affiliate purchases under an Order Form or online purchasing portal, as distinguished from Free Services or those provided pursuant to a free trial.

“Services” means the products and services that are ordered by Client under an Order Form or online purchasing portal, or provided to Client free of charge (as applicable) or under a free trial, and made available online by Union 1, including associated Union 1 offline or mobile components, as described in the Documentation.  “Services” exclude Content and Non-Union 1 Applications.

“Union 1” means the Union Digital company described in the “Union 1 Contracting Entity, Notices, Governing Law, and Venue” section below.

“User” means an individual who is authorized by Client to use a Service, for whom Client has purchased a subscription (or in the case of any Services provided by Union 1 without charge, for whom a Service has been provisioned), and to whom Client (or, when applicable, Union 1 at Client’s request) has supplied a user identification and password (for Services utilizing authentication).  Users may include, for example, employees, consultants, contractors and agents of Client, and third parties with which Client transacts business.

2. Union 1 RESPONSIBILITIES

2.1  Provision of Purchased Services.  Union 1 will (a) make the Services and Content available to Client pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable Union 1 standard support for the Purchased Services to Client at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Union 1 shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Union 1’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labour problem (other than one involving Union 1 employees), Internet service provider failure or delay, Non-Union 1 Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Union 1’s provision of its Services to its Clients generally (i.e., without regard for Client’s particular use of the Services), and subject to Client’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.

2.2  Protection of Client Data.  Union 1 will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, as described in the Documentation.  Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Client Data (other than by Client or Users).  Upon request by Client made within 30 days after the effective date of termination or expiration of this Agreement, Union 1 will make Client Data available to Client for export or download as provided in the Documentation.  After such 30-day period, Union 1 will have no obligation to maintain or provide any Client Data, and as provided in the Documentation will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control, unless legally prohibited.

2.3   Personal Information. Union 1 acknowledges and agrees that in the course of making the Services and Content available to Client under this Agreement it may receive, use or access Personal Information in Client’s possession either directly from Client or based upon the Users interaction with the Services. Union 1 agrees that such Personal Information constitutes Client Data to which the provisions of this Agreement apply, except to the extent such provisions are inconsistent with this Section 2.3, which prevails with respect to Personal Information. In this context, Union 1 will: (a) only share, transmit, disclose, collect, hold or store (even if only transitorily) such Personal Information in accordance with Privacy Laws and for such purposes as are necessary to discharge, complete or fulfill Union 1’s obligations under this Agreement; (b) perform its obligations under this Agreement in a manner that will enable Client to comply with Privacy Laws; (c) promptly notify Client if Union 1 receives a request for access to such Personal Information, receives a complaint in relation to such Personal Information or receives any notice that Union 1 has failed to comply with any Privacy Laws; (d) provide reasonable assistance to Client in:

(i) responding to any access, amendment, correction or similar request in connection with any Personal Information in Union 1’s possession;

(ii) investigating, mitigating or responding to any complaint relating to the receipt, use or disclosure of such Personal Information; and

(iii) responding to any requests or instructions issued by a governmental or regulatory authority in connection with such Personal Information.

2.4   Union 1 Personnel.  Union 1 will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Union 1’s obligations under this Agreement, except as otherwise specified in this Agreement.

2.5  Free Trial.  If Client registers on Union 1’s or an Affiliate’s website for a free trial, Union 1 will make the applicable Service(s) available to Client on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Client registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Client for such Service(s), or (c) termination by Union 1 in its sole discretion.  Additional trial terms and conditions may appear on the trial registration web page.  Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding.

ANY DATA CLIENT ENTERS INTO THE SERVICES, AND ANY CUSTOMIZATIONS MADE TO THE SERVICES BY OR FOR CLIENT, DURING CLIENT’S FREE TRIAL WILL BE PERMANENTLY LOST UNLESS CLIENT PURCHASES A SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL, PURCHASES APPLICABLE UPGRADED SERVICES, OR EXPORTS SUCH DATA, BEFORE THE END OF THE TRIAL PERIOD.

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS” SECTION AND “INDEMNIFICATION BY UNION 1” SECTION BELOW, DURING THE FREE TRIAL THE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND UNION 1 SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE SERVICES FOR THE FREE TRIAL PERIOD UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE UNION 1’S LIABILITY WITH RESPECT TO THE SERVICES PROVIDED DURING THE FREE TRIAL SHALL NOT EXCEED $1,000.00.  WITHOUT LIMITING THE FOREGOING, UNION 1 AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED DURING THE FREE TRIAL PERIOD WILL BE ACCURATE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO UNION 1 AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE SERVICES DURING THE FREE TRIAL PERIOD, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

CLIENT SHALL REVIEW THE APPLICABLE SERVICE’S DOCUMENTATION DURING THE TRIAL PERIOD TO BECOME FAMILIAR WITH THE FEATURES AND FUNCTIONS OF THE SERVICES BEFORE MAKING A PURCHASE.

2.6 Free Services.  Union 1 may make Free Services available to Client.  Use of Free Services is subject to the terms and conditions of this Agreement.  In the event of a conflict between this section and any other portion of this Agreement, this section shall control.  Free Services are provided to Client without charge up to certain limits as described in the Documentation.  Usage over these limits requires Client’s purchase of additional resources or services.  Client agrees that Union 1, in its sole discretion and for any or no reason, may terminate Client’s access to the Free Services or any part thereof.  Client agrees that any termination of Client’s access to the Free Services may be without prior notice, and Client agrees that Union 1 will not be liable to Client or any third party for such termination.  Client is solely responsible for exporting Client Data from the Free Services prior to termination of Client’s access to the Free Services for any reason, provided that if Union 1 terminates Client’s account, except as required by law Union 1 will provide Client a reasonable opportunity to retrieve its Client Data.

NOTWITHSTANDING THE “REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS”

SECTION AND “INDEMNIFICATION BY UNION 1” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND UNION 1 SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE SERVICES UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE UNION 1’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00.  WITHOUT LIMITING THE FOREGOING, UNION 1 AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CLIENT THAT: (A) CLIENT’S USE OF THE FREE SERVICES WILL MEET CLIENT’S REQUIREMENTS, (B) CLIENT’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE.  NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CLIENT SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO UNION 1 AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CLIENT’S USE OF THE FREE SERVICES, ANY BREACH BY CLIENT OF THIS AGREEMENT AND ANY OF CLIENT’S INDEMNIFICATION OBLIGATIONS HEREUNDER.

3. USE OF SERVICES AND CONTENT

3.1 Subscriptions.  Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form or in the applicable online purchasing portal, (b) subscriptions for Purchased Services 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 (c) any added subscriptions will terminate on the same date as the underlying subscriptions.  Client agrees that its purchases are

not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Union 1 regarding future functionality or features.

3.2 Usage Limits.  Services and Content are subject to usage limits specified in Order Forms and Documentation.  If Client exceeds a contractual usage limit, Union 1 may work with Client to seek to reduce Client’s usage so that it conforms to that limit.  If, notwithstanding Union 1’s efforts, Client is unable or unwilling to abide by a contractual usage limit, Client will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Union 1’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.

3.3 Client Responsibilities.  Client will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Client Data, the means by which Client acquired Client Data, Client’s use of Client Data with the Services, and the interoperation of any Non-Union 1 Applications with which Client uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Union 1 promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with terms of service of any Non-Union 1 Applications with which Client uses Services or Content.  Any use of the Services in breach of the foregoing by Client or Users that in Union 1’s judgment threatens the security, integrity or availability of Union 1’s services, may result in Union 1’s immediate suspension of the Services, however Union 1 will use commercially reasonable efforts under the circumstances to provide Client with notice and an opportunity to remedy such violation or threat prior to any such suspension.

3.4 Usage Restrictions.  Client will not (a) make any Service or Content available to anyone other than Client or Users, or use any Service or Content for the benefit of anyone other than Client or its Affiliates, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use a Service or Non-Union 1 Application to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights, (d) use a Service or Non-Union 1 Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Services or Content in a way that circumvents a contractual usage limit, or use any Services to access or use any of Union 1 intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on a Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Client’s own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse engineer, or decompile a Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Services are within the scope of any patent.  

3.5 Removal of Content and Non-Union 1 Applications.  If Client receives notice that Content or a Non-Union 1 Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or the Acceptable Use and External Facing Services Policy, Client will promptly do so.  If Client does not take required action in accordance with the above, or if in Union 1’s judgment continued violation is likely to reoccur, Union 1 may disable the applicable Content, Service and/or Non-Union 1 Application.  If requested by Union 1, Client shall confirm such deletion and discontinuance of use in writing and Union 1 shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable.  In addition, if Union 1 is required by any third-party rights holder to remove Content, or receives information that Content provided to Client may violate applicable law or third-party rights, Union 1 may discontinue Client’s access to Content through the Services.  

4. NON-UNION 1 PRODUCTS AND SERVICES

4.1 Non-Union 1 Products and Services.  Union 1 or third parties may make available (for example, through a Marketplace or otherwise) third-party products or services, including, for example, Non-Union 1 Applications and implementation and other consulting services.  Any acquisition by Client of such products or services, and any exchange of data between Client and any Non-Union 1 provider, product or service is solely between Client and the applicable Non-Union 1 provider.  Union 1 does not warrant or support Non-Union 1 Applications or other Non-Union 1 products or services, whether or not they are designated by Union 1 as “certified” or otherwise, unless expressly provided otherwise in an Order Form.  Union 1 is not responsible for any disclosure, modification or deletion of Client Data resulting from access by such Non-Union 1 Application or its provider.

4.2 Integration with Non-Union 1 Applications.  The Services may contain features designed to interoperate with Non-Union 1 Applications.  Union 1 cannot guarantee the continued availability of such Service features, and may cease providing them without entitling Client to any refund, credit, or other compensation, if for example and without limitation, the provider of a Non-Union 1 Application ceases to make the Non-Union 1 Application available for interoperation with the corresponding Service features in a manner acceptable to Union 1.

5. FEES AND PAYMENT

5.1 Fees.  Client will pay all fees specified in Order Forms.  Except as otherwise specified herein or in an Order Form, (i) fees are based on Services and Content subscriptions purchased and not actual usage, (ii) payment obligations are non- cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.

5.2 Invoicing and Payment.  Client will provide Union 1 with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Union 1.  If Client provides credit card information to Union 1, Client authorizes Union 1 to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below.  Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form.  If the Order Form specifies that payment will be by a method other than a credit card, Union 1 will invoice Client in advance and otherwise in accordance with the relevant Order Form.  Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date.  Client is responsible for providing complete and accurate billing and contact information to Union 1 and notifying Union 1 of any changes to such information.

5.3 Overdue Charges.  If any invoiced amount is not received by Union 1 by the due date, then without limiting Union 1’s rights or remedies, (a) those charges may accrue late interest at the rate of 2% of the outstanding balance per month (24% compounded annually), or the maximum rate permitted by law, whichever is lower, and/or (b) Union 1 may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.

5.4 Suspension of Service and Acceleration.  If any charge owing by Client under this or any other agreement for services is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Client has authorized Union 1 to charge to Client’s credit card), Union 1 may, without limiting its other rights and remedies, accelerate Client’s unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Services until such amounts are paid in full, provided that, other than for Clients paying by credit card or direct debit whose payment has been declined, Union 1 will give Client at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services to Client.

5.5 Payment Disputes.  Union 1 will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Client is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.

5.6 Taxes.  Union 1’s fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”).  Client is responsible for paying all Taxes associated with its purchases hereunder.  If Union 1 has the legal obligation to pay or collect Taxes for which Client is responsible under this section, Union 1 will invoice Client and Client will pay that amount.  For clarity, Union 1 is solely responsible for taxes assessable against it based on its income, property and employees.

6. PROPRIETARY RIGHTS AND LICENSES

6.1 Reservation of Rights.  Subject to the limited rights expressly granted hereunder, Union 1, its Affiliates, its licensors and Content Providers reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights.  No rights are granted to Client hereunder other than as expressly set forth herein.

6.2 Access to and Use of Content.  Client has the right to access and use applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.

6.3 License by Client to Union 1.  The Client grants Union 1 permission to use the Client’s name and logo in any of Union 1’s or their Affiliates’ marketing materials. Union 1 or their Affiliate, as applicable, shall include a trademark attribution notice giving notice of the Client’s ownership of its trademarks in the marketing materials in which the Client’s name and logo appear. Client also grants Union 1, its Affiliates and applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Union 1 Applications and program code created by or for Client using a Service or for use by Client with the Services, and Client Data, each as appropriate for Union 1 to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement.  If Client chooses to use a Non-Union 1 Application with a Service, Client grants Union 1 permission to allow the Non-Union 1 Application and its provider to access Client Data and information about Client’s usage of the Non-Union 1 Application as appropriate for the interoperation of that Non-Union 1 Application with the Service.  Subject to the limited licenses granted herein, Union 1 acquires no right, title or interest from Client or its licensors under this Agreement in or to any Client Data, Non-Union 1 Application or such program code.

6.4 License by Client to Use Feedback.  Client grants to Union 1 and its Affiliates a worldwide, perpetual, irrevocable, royalty free, assignable, sublicensable license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Client or Users relating to the operation of Union 1’s or its Affiliates’ services.

7. CONFIDENTIALITY

7.1 Definition of Confidential Information.  “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure.  Confidential Information of Client includes Client Data; Confidential Information of Union 1 includes the Services and Content, and the terms and conditions of this Agreement and all Order Forms (including pricing). Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party.  However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.  For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with the evaluation of additional Union 1 services.

7.2 Protection of Confidential Information.  As between the parties, each party retains all ownership rights in and to its Confidential Information.  The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.  Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its Affiliates, legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its Affiliate, legal counsel or accountants will remain responsible for such Affiliate’s, legal counsel’s or accountant’s compliance with this “Confidentiality” section.  Notwithstanding the foregoing, Union 1 may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Union 1 Application Provider to the extent necessary to perform Union 1’s obligations under this Agreement, under terms of confidentiality materially as protective as set forth herein.

7.3 Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure.  If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.

8. REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS

8.1     Representations.  Each party represents that it has validly entered into this Agreement and has the legal power to do so.

8.2 Union 1 Warranties.  Union 1 warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data, (b) Union 1 will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Union 1 Applications” section above, Union 1 will not materially decrease the overall functionality of the Services.  For any breach of a warranty above, Client’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.

8.3 Disclaimers.  EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.  CONTENT AND BETA SERVICES ARE PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER. 

9. MUTUAL INDEMNIFICATION

9.1        Indemnification by Union 1.  Union 1 will defend Client against any claim, demand, suit or proceeding made or brought against Client by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Client”), and will indemnify Client from any damages, attorney fees and costs finally awarded against Client as a result of, or for amounts paid by Client under a settlement approved by Union 1 in writing of, a Claim Against Client, provided Client (a) promptly gives Union 1 written notice of the Claim Against Client, (b) gives Union 1 sole control of the defense and settlement of the Claim Against Client (except that Union 1 may not settle any Claim Against Client unless it unconditionally releases Client of all liability), and (c) gives Union 1 all reasonable assistance, at Union 1’s expense.  If Union 1 receives information about an infringement or misappropriation claim related to a Service, Union 1 may in its discretion and at no cost to Client (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Union 1’s warranties under “Union 1 Warranties” above, (ii) obtain a license for Client’s continued use of that Service in accordance with this Agreement, or (iii) terminate Client’s subscriptions for that Service upon 30 days’ written notice and refund Client any prepaid fees covering the remainder of the term of the terminated subscriptions.  The above defense and indemnification obligations do not apply if (1) the allegation does not state with specificity that the Services are the basis of the Claim Against Client; (2) a Claim Against Client arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Union 1, if the Services or use thereof would not infringe without such combination; (3) a Claim Against Client arises from Services under an Order Form for which there is no charge; or (4) a Claim against Client arises from Content, a Non-Union 1 Application or Client’s breach of this Agreement, the Documentation or applicable Order Forms.

9.2 Indemnification by Client.  Client will defend Union 1 and its Affiliates against any claim, demand, suit or proceeding made or brought against Union 1 by a third party alleging (a) that any Client Data or Client’s use of Client Data with the Services, (b) a Non-Union 1 Application provided by Client, or (c) the combination of a Non-Union 1 Application provided by Client and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Client’s use of the Services or Content in an unlawful manner or in violation of the Agreement, the Documentation, or Order Form (each a “Claim Against Union 1”), and will indemnify Union 1 from any damages, attorney fees and costs finally awarded against Union 1 as a result of, or for any amounts paid by Union 1 under a settlement approved by Client in writing of, a Claim Against Union 1, provided Union 1 (a) promptly gives Client written notice of the Claim Against Union 1, (b) gives Client sole control of the defense and settlement of the Claim Against Union 1 (except that Client may not settle any Claim Against Union 1 unless it unconditionally releases Union 1 of all liability), and (c) gives Client all reasonable assistance, at Client’s expense.  The above defense and indemnification obligations do not apply if a Claim Against Union 1 arises from Union 1’s breach of this Agreement, the Documentation or applicable Order Forms.

9.3     Exclusive Remedy.  This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.

10. LIMITATION OF LIABILITY

10.1 Limitation of Liability.  IN NO EVENT SHALL THE AGGREGATE LIABILITY OF EACH PARTY TOGETHER WITH ALL OF ITS AFFILIATES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT PAID BY CLIENT AND ITS AFFILIATES HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE.  THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, BUT WILL NOT LIMIT CLIENT’S AND ITS AFFILIATES’ PAYMENT OBLIGATIONS UNDER THE “FEES AND PAYMENT” SECTION ABOVE.

10.2 Exclusion of Consequential and Related Damages.  IN NO EVENT WILL EITHER PARTY OR ITS AFFILIATES HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF A PARTY OR ITS AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF A PARTY’S OR ITS AFFILIATES’ REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY LAW.

10.3 Exclusions from Limitations of Liability. Notwithstanding anything to the contrary, Section 10.1 and Section 10.2 shall not apply to a party’s indemnification obligations under this Agreement.

11. TERM AND TERMINATION

11.1 Term of Agreement.  This Agreement commences on the date Client first accepts it and continues until all subscriptions hereunder have expired or have been terminated.

11.2 Term of Purchased Subscriptions.  The term of each subscription shall be as specified in the applicable Order Form.  Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 30 days before the end of the relevant subscription term.  Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Union 1’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.

11.3 Termination.  A party may terminate this Agreement for cause (i) 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 (ii) 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.

11.4 Refund or Payment upon Termination.  If this Agreement is terminated by Client in accordance with the “Termination” section above, Union 1 will refund Client any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination.  If this Agreement is terminated by Union 1 in accordance with the “Termination” section above, Client will pay any unpaid fees covering the remainder of the term of all Order Forms to the extent permitted by applicable law.  In no event will termination relieve Client of its obligation to pay any fees payable to Union 1 for the period prior to the effective date of termination.

11.5 Surviving Provisions.  The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” “Refund or Payment upon Termination,” “Removal of Content and Non-Union 1 Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Client Data” will survive any termination or expiration of this Agreement for so long as Union 1 retains possession of Client Data.

12. GENERAL PROVISIONS

12.1 Anti-Corruption.  Neither party has received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from an employee or agent of the other party in connection with this Agreement.  Reasonable gifts and entertainment provided in the ordinary course of business do not violate the above restriction.  

12.2 Entire Agreement and Order of Precedence.  This Agreement is the entire agreement between Union 1 and Client regarding Client’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter.  The parties agree that any term or condition stated in a Client purchase order or in any other Client order documentation (excluding Order Forms) is void.  In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation.  Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.

12.3 Relationship of the Parties.  The parties are independent contractors.  This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.

12.4 Third-Party Beneficiaries.  There are no third-party beneficiaries under this Agreement.

12.5 Waiver.  No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.

12.6 Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision will be deemed null and void, and the remaining provisions of this Agreement will remain in effect.

12.7 Assignment.  Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety (including all Order Forms), without the other party’s consent to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets.  Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice.  In the event of such a termination, Union 1 will refund Client any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination.  Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.8 Union 1 Contracting Entity, Notices, Governing Law, and Venue.  TheUnion 1 entity entering into this Agreement, the address to which Client should direct notices under this Agreement, the law that will apply in any dispute or lawsuit arising out of or in connection with this Agreement, and the courts that have jurisdiction over any such dispute or lawsuit, depend on where Client is domiciled. 

If Client is domiciled in:The Union 1 entity entering into this Agreement is: Notices should be addressed to:Governing law is:Courts with exclusive jurisdiction are:
CanadaUnion Digital, an Ontario corporation17 Belfield Road, Etobicoke Ontario M9W 1E8Ontario and controlling Canadian federal lawToronto, Ontario, Canada

12.10 Manner of Giving Notice.  Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c), except for notices of termination or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, the day of sending by email.  Billing-related notices to Client will be addressed to the relevant billing contact designated by Client.  All other notices to Client will be addressed to the relevant Services system administrator designated by Client.

12.11 Agreement to Governing Law and Jurisdiction.  Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.

12.12 English Language. The parties confirm that it is their wish that this Agreement, as well as all other documents relating hereto, including all notices, be drawn up in the English language only. Les parties aux présentes confirment leur volonté que cette convention, de même que tous les documents, y compris tout avis, qui s’y rattachent, soient rédigés en langue anglaise.