SaaS Agreement
Walter Software-as-a-service agreement
This Walter software-as-a-service agreement (together with any Orders, any attachments, exhibits, and/or amendments hereto, as amended from time to time, collectively the “Agreement”), dated effective as of the Effective Date, between Walter Software Corporation, (“Walter”), and the Person which has entered into an Order (the “Customer”). This Agreement includes the terms set out in the Order (as defined below in Section 1) any current or future Orders, and all such documents are incorporated by this reference. Walter and the Customer together the “Parties” and each a “Party”.
This Agreement sets forth the terms and conditions that govern the provision and use of the Walter Services.
NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:
- Definitions
As used in this Agreement, the following capitalized words have the meaning set out below:
“Action” has the meaning set out in Section 11(a)(i).
“Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
“Aggregated Data” has the meaning set out in Section 3(a).
“Agreement” has the meaning in the preamble.
“Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
“Client User” has the meaning set out in Section 5(a).
“Confidential Information” has the meaning set out in Section 9(a).
“Customer Data” means (other than Aggregated Data), any data, information including Personal Information, content, records, and files that the Customer (or any of its Permitted Users) loads or enters into, transmits to, or makes available to the Walter SaaS Services, including data, documents and relationships associated with equity ownership and other corporate information related to clients or portfolio companies of a Customer.
“Customer Indemnitee” has the meaning set out in Section 11(a)(i).
“Customer User Account” has the meaning set out in Section 5(a).
“Discloser” has the meaning set out in Section 9(a).
“Documentation” means Walter’s manuals, instructions or other documents or materials listed in the Order, that Walter provides or makes available to Customer in any form or medium and which describe the functionality, components, features or requirements of the Walter SaaS Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance thereof.
“Effective Date” means: (i) in cases where the Customer has entered into this Agreement by manually or digitally signing an order form, the Effective Date set out in the order form; or (ii) in cases where the Customer has entered into this Agreement by agreeing to subscribe for the Walter SaaS Services and this Agreement on the Website, the date on which the Customer’s agreement was recorded as entered on the Website.
“Feedback” has the meaning set out in Section 3(c).
“Fees” has the meaning set out in Section 8(a).
“Force Majeure Event” has the meaning set out in Section 14(f).
“Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, or other law, rule or regulation-making entity having jurisdiction over Walter.
“Initial Term” has the meaning set out in Section 13(a).
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Licensed Third-Party Technology” means third-party technology that is licensed under separate license terms and not under this Agreement.
“Loss” or “Losses” means any and all losses, damages, claims, Actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Walter Application” means Walter’s mobile application product under the name Walter and any updates provided as part of the Walter SaaS Services.
“Walter Indemnitee” has the meaning set out in Section 11(b).
“Walter Property” has the meaning set out in Section 3(b).
“Walter SaaS Services” means the services through: (i) which Walter hosts and makes available the Walter Applications as described in an Order and the product descriptions set out on the Website; and (ii) any component or Modification of the services referred to in (i). The term “Walter SaaS Services” does not include Professional Services.
“Walter Services” means the Walter SaaS Services and the Professional Services, collectively, and any part thereof.
“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Order” means either: (i) the order entered into by manually or digitally signing an order form provided by Walter to which this agreement is appended or which incorporates this Agreement by reference; or (ii) the order entered into by agreeing to subscribe for the Walter SaaS Services and this Agreement on the Website.
“Permitted User(s)” has the meaning set out in Section 5(a) and includes any Customer User Account.
“Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority.
“Personal Information” means information about an identifiable individual provided by Customer under this Agreement.
“Professional Services” means the consulting, training and other professional services described in a statement of work which incorporates one or both of the Order and this Agreement. The term “Professional Services” does not include Walter SaaS Services.
“Recipient” has the meaning set out in Section 9(a).
“Support Services” has the meaning set out in Exhibit A.
“Term” has the meaning set out in Section 13(a).
“Third-Party Products” has the meaning set out in Section 2(e).
“Website” means any websites used by Walter to provide the Walter SaaS Services, including the website(s) located at https://*.getwalter.com.
“Workspace” means the segregated portion of the Walter SaaS Service made available to store the Customer Data pertaining to one or both of Customer or a Client User.
- Walter Services
Provisioning of the Services. During the Term, subject to the Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Walter will make available to Customer the Walter SaaS Services set out in the Order, for access and use by Customer and Permitted Users.
Restrictions on Use. Customer will not itself, and will not permit others to:
sub-license, sell, rent, lend, lease or distribute the Walter SaaS Services or any Intellectual Property Rights therein, or otherwise make the Walter SaaS Services available to any third parties other than Permitted Users;
use the Walter SaaS Services to permit timesharing, service bureau use or commercially exploit the Walter SaaS Services;
to solicit or receive funds for public offerings of securities or crowdfunding;
use any payment capability provided by the Walter SaaS Services for any purpose other than collecting funds related to validly issued securities, options or debt associated with Customer or Customer’s clients or portfolio companies;
use or access the Walter SaaS Services:
in violation of any Applicable Law or Intellectual Property Right; or
in a manner that threatens the security or functionality of the Walter SaaS Services;
use the Walter Services to create, collect, transmit, store, use or process any Customer Data:
that Customer does not have the lawful right to create, collect, transmit, store, use or process;
that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third-party (including any moral right, privacy right or right of publicity); or
that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
modify the Walter SaaS Services;
attempt to reverse engineer, de-compile or disassemble the Walter SaaS Services;
remove or obscure any proprietary notices or labels on the Walter SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
access or use the Walter SaaS Services for the purpose of building a similar or competitive product or service;
perform any vulnerability, penetration or similar testing of the Walter SaaS Services; or
use the Walter Services for any purpose or in any manner not expressly permitted in this Agreement.
Suspension of Access. Modifications. Walter may, from time to time and in its discretion without limiting any of its other rights or remedies at law or in equity under this Agreement:
suspend the Customer’s access to or use of the Walter Services or any component thereof:
if Customer or any Permitted User violates any provision of this Agreement;
for scheduled maintenance;
due to a Force Majeure Event;
to address any emergency security concerns;
if required to do so by a regulatory body or as a result of a change in Applicable Law; or
for any other reason as provided in this Agreement.
Modify the Walter Services.
Customer is required to accept all patches, bug fixes and updates made by or on behalf of Walter to the Walter SaaS Services.
Subcontracting. Walter may engage third parties to assist it in providing the Walter Services or any part thereof.
Third-Party Products. The Walter SaaS Services may contain or require the use of Licensed Third-Party Technology or other third-party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Walter does not warrant or support Third-Party Products whether or not they are designated by Walter as “certified” or otherwise. Walter cannot guarantee the continued availability of such Third-Party Products features and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Walter. Walter is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
Professional Services. Walter will use commercially reasonable efforts to perform the Professional Services set out in an applicable Order.
- Ownership; Reservation of Rights and License Grants
The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. The Customer grants to Walter, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right during the Term to access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
provide the Walter Services;
improve and enhance the Walter Services and its other offerings; and
produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”).
Walter may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to the Customer of any kind. Aggregated Data is not Customer Data and is not the Customer’s Confidential Information.
Walter or its licensors retain all right, title and interest including all Intellectual Property Rights in and to:
the Walter Services;
anything used, developed or delivered by or on behalf of Walter provided under this Agreement;
all other Walter’s Confidential Information, including but not limited to, any reports generated from the Walter SaaS Services or any Aggregated Data; and
any Modifications to the foregoing (i), (ii) and (iii)
(collectively “Walter Property”).
Customer grants to Walter and its Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Walter Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Walter’s or its Affiliates’ services (“Feedback”). Nothing in this Agreement will restrict Walter’s or its Affiliates’ right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Walter is not obligated to use any Feedback.
All rights not expressly granted by Walter to Customer under this Agreement are reserved.
Subject to the terms and conditions of this Agreement, Walter hereby grants to Customer a revocable, non-exclusive, non-transferable, non-sub-licensable (other than to Permitted Users as provided herein), limited license during the Term to use the Documentation solely for the purpose of use and receipt of the Walter SaaS Services.
- Privacy
Customer understands that Personal Information will be treated in accordance with Walter’s privacy policy located at https://getwalter.com/legal/privacy or such other place as may be updated by Walter from time to time.
- Customer User Account; Responsibility for Permitted Users
Upon Customer’s request Walter will issue one or more accounts (each, a “Customer User Account”) to the Customer for use by: (i) one or more individuals who are employees of the Customer that the Customer wishes to have access to and use of the Walter SaaS Services; and (ii) if applicable, clients or portfolio companies of the Customer who have been designated by Customer as client users (“Client Users”) and have agreed to the terms and conditions for access to the Walter SaaS Services made available to such Client Users by Walter (each, a “Permitted User”).
The Customer will ensure that each Permitted User only use the Walter SaaS Services through its assigned Customer User Account. The Customer will not allow any Permitted User to share its Customer User Account with any other Person. The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Walter SaaS Services in compliance with this Agreement. The Customer will promptly notify Walter of any actual or suspected unauthorized use of the Walter SaaS Services. Walter reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.
The Customer will ensure that all individual users of the Walter SaaS Services, including Permitted Users, are contractually bound to terms and conditions with the Customer that are no less restrictive or protective of Walter’s rights than those set forth in this Agreement.
- Support
Subject to the terms of this Agreement, Walter will use commercially reasonable efforts to provide Customer with Support Services as defined and outlined in Exhibit A attached hereto.
- Service Levels
Subject to the terms hereof, Walter will use commercially reasonable efforts to provide the Walter SaaS Services in accordance with the service levels in Exhibit B attached hereto.
- Fees and Payment
Fees. The Customer will pay to Walter the fees described in an Order (“Fees”). Unless otherwise noted on an Order: (i) all Fees are identified in United States dollars; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If the Customer’s use of the Walter SaaS Services exceeds the service capacity set forth in an Order or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and the Customer will pay the additional fees in accordance with this Agreement.
Changes to the Fees. Walter reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to the Customer.
Invoicing. Walter will prepare and send to the Customer, at the then-current contact information on file with Walter, an invoice for any Fees that have become due and payable. For accounts under $12,000 annual Fees, payment via credit card is required. Accounts over $12,000 annual Fees may pay via electronic funds transfer. Unless otherwise expressly stipulated in an invoice, the Customer will pay all invoiced amounts within 30 calendar days of the invoice date.
Disputed Invoices or Charges. If the Customer believes Walter has charged or invoiced the Customer incorrectly, the Customer must contact Walter no later than 30 days after having been charged by Walter or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. Walter reserves the right to suspend the Customer’s access to the Walter SaaS Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Walter other rights, Walter may suspend Customer’s access to or its performance of the Walter Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. The Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including applicable interest and penalties) payable in connection with the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Walter.
Suspension. Any suspension of the Walter Services by Walter pursuant to this Agreement will not excuse the Customer from its obligation to make payments under this Agreement.
- Confidential Information
Definitions. For the purposes of this Agreement, a Party or its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its service providers, licensors or customers that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where Discloser is the Customer, Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third-party who was free to disclose it without confidentiality obligations.
Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not:.
disclose Confidential Information of the Discloser to any Person, except to:
in the case of the Customer to its own personnel and Permitted Users that have a “need to know” for the purposes of receiving or providing the Walter Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
in the case of Walter to Walter’s employees, independent contractors, advisors, consultants, agents and its Affiliates, that have a “need to know” for the purposes of receiving or providing the Walter Services and that have entered into written agreements no less protective of such Confidential Information than this Agreement and to its subcontractors and contractors to perform the Walter Services;
use Confidential Information of the Discloser other than to exercise its rights or perform its obligations under this Agreement; or
alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Exceptions to Confidentiality. Notwithstanding Section 9(b), the Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Walter, to potential assignees, acquirers or successors of Walter if and to the extent such Persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Walter.
Injunction and other equitable relief. The Customer agrees: (i) that no adequate remedy exists at law if it breaches any of its obligations in this Section 9; (ii) that it would be difficult to determine the damages resulting from its breach of this Section 9 and that such breach would cause irreparable injury to Walter; and (iii) that a grant of injunctive relieve provides the best remedy for any such breach, without any requirement that Walter prove actual damage or post a bond or other security. The Customer waives any opposition to such injunctive relief or any right to such proof, bond, or other security.
Return of Confidential Information. Upon the termination or expiration of this Agreement and all Orders under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 13(e) below) of the other Party in its possession or control within a reasonable amount of time in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Walter may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
- Warranty; Disclaimer
Customer Warranty. Customer represents and warrants to, and covenants with Walter that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third-party consents and permissions and otherwise has all authority, in each case as required by and in compliance with Applicable Laws, including applicable privacy laws, to enable Walter to provide the Walter Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Walter and to or from all applicable third parties.
GENERAL DISCLAIMER.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, WALTER HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, WALTER EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY TEMPLATES, DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE WALTER SERVICES (OR ANY PART THEREOF), ARE ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
CUSTOMER ACKNOWLEDGES THAT WALTER DOES NOT PROVIDE LEGAL OR INVESTMENT ADVICE OR PRACTICE LAW, NOR DOES IT REVIEW ANY CUSTOMER DATA FOR COMPLIANCE WITH APPLICABLE LAWS. CUSTOMER IS WHOLLY RESPONSIBLE FOR COMPLIANCE WITH APPLICABLE LAWS, INCLUDING LAWS RELATING TO INVESTMENT AND THE OFFERING OF SECURITIES TO INVESTORS.
- Indemnities
Walter Indemnity.
Walter will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third-party (other than an Affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Walter SaaS Services infringe any third-party Intellectual Property Right. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Walter SaaS Services into, or any combination, operation, or use of any Walter SaaS Services with, any products or services not provided or authorized by Walter, unless such infringement would also have resulted solely from the use of the Walter SaaS Services without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Walter SaaS Services other than by Walter or with Walter’s express written approval; (C) unauthorized use of the Walter SaaS Services; or (D) Customer’s indemnity in Section 11(b). THE FOREGOING IS Walter’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS.
If the Walter SaaS Services are, or in Walter’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any Walter SaaS Services is enjoined or threatened to be enjoined, Walter may, at its option and sole cost and expense:
obtain the right for the Customer to continue to use the affected Walter SaaS Services materially as contemplated by this Agreement;
modify or replace Walter SaaS Services, in whole or in part, to seek to make the Walter SaaS Services (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Walter SaaS Services under this Agreement; or
if Walter determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by Walter and Walter’s sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to any Walter SaaS Services that were to be provided after the effective date of termination.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
Customer Indemnity. The Customer will defend, indemnify and hold harmless Walter, and its officers, directors, employees and agents (each, a “Walter Indemnitee”) from and against any and all Losses incurred by a Walter Indemnitee arising out of or relating to any Action by a third-party, including Client Users that arise from or relate to: (i) Customer Data; (ii) the provision of legal or investment advice by Customer to Client Users; (iii) unauthorized use of the Walter Services by the Customer or any Permitted User; or (iv) use of the Walter Services in a manner that contravenes Applicable Law.
Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 11. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 11(c) will not relieve the Indemnitor of its indemnity obligations under this Section except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
- Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF WALTER IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE WALTER SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL WALTER’S THIRD-PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WALTER BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR WALTER SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Term and Termination
Term. This Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term”), unless either Party provides the other Party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term (each, a “Renewal Term” and together with the Initial Term, the “Term”).
Termination by Walter. In addition, and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Walter Services may be terminated or suspended by Walter at any time at Walter’s sole discretion. Walter may immediately terminate Customer’s right to use the Walter Services or this Agreement: (i) if Walter believes that Customer or any Permitted User has violated this Agreement; (ii) if Walter believes the use of Customer Data with the Walter Services is not in Walter’s or its users’ best interests; (iii) if Walter ceases to offer the Walter Services; or (iv) as required by Applicable Laws.
Termination for Convenience by Walter. Notwithstanding any other Section of this Agreement, Walter may, in its discretion, terminate this Agreement or any Order hereunder at any time by providing at least 30 days advance written notice to Customer.
Termination for Cause. Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events: (i) the other Party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 8) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (ii) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (iii) any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.
Effect of Termination. Upon expiration or termination of this Agreement, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Walter SaaS Services and return any Walter Property in its possession and certify in writing to Walter that the Walter Property has been returned. Provided, however, Walter will make all Customer Data available to Customer for electronic retrieval for a period of 30 days. Following such 30-day period and subject to Walter’s rights to retain information as set out in this Agreement, Walter will delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Walter to provide the Walter SaaS Services. In addition, Customer acknowledges that a Client User may have an independent right to retrieve or maintain the portion of the Customer Data relating to such Client User in such Client User’s Workspace pursuant to Client User’s agreement with Walter. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to Walter are immediately due and are to be immediately paid by Customer to Walter. All Orders will terminate upon the termination of this Agreement. No new Order may be agreed to or entered into by the Parties, upon the termination of this Agreement.
Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Customer Warranty), Section 11 (Indemnities), Section 12 (Limitation of Liabilities), Section 14 (General Provisions) and this Section 13(f) (Survival).
- General Provisions
Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or 5 days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Walter, to the following address:
Address: 329 Howe St, #2126, Vancouver, BC V6C 3N2
Attention: Walter Software Corporation
Email: support@getwalter.com
and (ii) if to the Customer, to the current postal or email address that Walter has on file with respect to the Customer. Walter may change its contact information by posting the new contact information on the Website or by giving notice thereof to the Customer. The Customer is solely responsible for keeping its contact information on file with Walter current at all times during the Term.Assignment. The Customer shall not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Walter. Any purported assignment or delegation by the Customer in violation of this Section will be null and void. Walter may assign this Agreement or any rights under this Agreement to any third-party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
Governing Law and Attornment. This Agreement and any Action related thereto will be governed by and construed in accordance with the laws of the Province of British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Walter may: (i) commence lawsuits to collect unpaid Fees from the Customer; and (ii) seek injunctive relief with respect to a violation of Walter’s Intellectual Property Rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
Export Restrictions. The Customer agrees not to directly or indirectly export or re-export any of the Walter Services without first obtaining all required licenses, permits and permissions required under Applicable Law. Walter makes no representation or warranty that the Walter Services may be exported without the Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect.
Force Majeure Event. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites (“Force Majeure Event”). This Section does not apply to any of Customer’s obligations under Sections 8, 9, or 11.
Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
Independent Contractors. Walter’s relationship to the Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third-party that it has, any authority to act on behalf of or bind the other Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
Customer Lists. Walter may identify the Customer by name and logo as a Walter customer on Walter’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
Counterparts. This Agreement may be signed in counterparts. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.
Exhibit A
Support Services
Upon Walter confirming that Walter SaaS Services are available for production use by Permitted Users and during the Term, Walter will provide support services for the Walter SaaS Services excluding downtime for Excluded Downtime (“Support Services”). The following items are excluded from the Support Services: (a) time during holidays and weekends and periods when Walter is performing maintenance (e.g. if Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance); (b) any downtime resulting from outages of third-party connections or utilities or other reasons beyond Walter’s control; (c) any downtime due to suspension of Walter SaaS Services due to Customer’s non payment of Fees; (d) any downtime due to a Force Majeure Event; (e) Customer’s breach of this Agreement; (f) any downtime caused by Internet access or related problems beyond the control of Walter; (g) any downtime for emergency maintenance; or (h) Walter’s blocking of data communications or other Walter SaaS Services in accordance with its policies (collectively “Excluded Downtime”). For the purposes of this Agreement, “Incident” means any verifiable and reproducible error or defect in the Walter SaaS Services that causes the Walter SaaS Services to not operate substantially in accordance with the functionality set out in an applicable Order and the product descriptions on the Website.
Walter will use commercially reasonable efforts during 9 am PST to 4pm PST (“Business Hours”) Monday to Friday, excluding British Columbia and Canadian holidays (“Business Days”) to handle Incidents in accordance with the table below:
Incident PriorityDefinitionLevel of EffortInitial ResponseService RestorationStatus Updates1Incident in a production environment that: (i) renders the Walter SaaS Services or any material functionality therein inoperative (incl. impaired Permitted User use, data loss/corruption); (ii) causes the mean Walter SaaS Services response time to exceed 25 seconds; or (iii) results in unavailability of Walter’s application programming interface (where applicable).Continuous best efforts, 24 hours per day, 7 days per week.Immediate, but in no event to exceed 60 minutes.Four hoursA functional work-around is provided and accepted.Every hour until a service restoration is provided.2Any Incident that materially adversely affects the functionality of the Walter SaaS Services, causes a material portion of the Walter SaaS Services’ functionality to be unavailable, causes the mean Walter SaaS Services response time for user access to and from the Walter SaaS Services to exceed 15 seconds.Continuous best efforts, 24 hours per day, 7 days per week.One Business Day.One calendar day.
A functional work-around is provided and accepted.every calendar day until a service restoration is provided.3Any Incident that has a minor impact.Commercially reasonable efforts, during normal Business Hours.One Business Day.Three calendar days.N/A.Initial Response and service restoration times commence from the time that Customer reports an Incident to Walter. “Response” means an acknowledgement by Walter’s personnel of Incident report from Customer but not resolution or service resolution of the Incident.
Exhibit B
Service Levels
The Walter SaaS Services will have 99% uptime measured on a monthly basis excluding downtime as outlined herein (“Guaranteed Uptime”). Downtime will begin to be calculated as soon as Customer notifies Walter that the downtime is taking place and will continue until the availability of the Walter SaaS Services are restored. The Guaranteed Uptime will not include the following: (a) time during holidays and weekends and periods when Walter is performing maintenance (e.g. if Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance); (b) any downtime resulting from outages of third-party connections or utilities or other reasons beyond Walter’s control; (c) any downtime due to suspension of Walter SaaS Services due to Customer’s non payment of Fees; (d) any downtime due to a Force Majeure Event; (e) Customer’s breach of this Agreement or any Order; (f) any downtime caused by Internet access or related problems beyond the control of Walter; (g) any downtime for emergency maintenance; or (h) Walter’s blocking of data communications or other Walter SaaS Services in accordance with its policies.
Customer’s sole and exclusive remedy, and Walter’s entire liability, in connection with service availability will be that Walter will credit to Customer’s account 5% of Fees for the Walter SaaS Services attributable to the month in which Walter fails to meet the service availability requirement for the Walter SaaS Services.
In order to receive a service credit, Customer must notify Walter in writing within 48 hours from the end of the applicable calendar month for which the service credit arose. Failure to provide such notice will forfeit the right to receive credits. Any credits may not be redeemed for cash. Walter will only apply the credit to the year in which the downtime event occurred. Credits are forfeit upon termination of this Agreement.