Terms of Service
This Border0 terms of service (together with any attachments, exhibits, and any other terms they expressly incorporate by reference, all as amended from time to time, collectively the “Agreement”) form an agreement between the customer accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services (such customer, the “Customer”) and Border0 Inc. (“Border0”), the supplier of the Services. This Agreement is entered into effective on the earlier of: (i) the date Customer first uses any part of the Services; and (ii) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
This Agreement sets forth the terms and conditions that govern the provision and use of the Services.
BY USING THE SERVICES, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 14.12. IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO BORDER0 THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON OR ENTITY, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO BORDER0 THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON OR SUCH ENTITY TO THIS AGREEMENT.
BORDER0’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH BORDER0’S PRIOR WRITTEN CONSENT.
As used in this Agreement, the following capitalized words have the meaning set out below:
1.1 Action” has the meaning in Section 11.1.
1.2 “Administrator Account” has the meaning in Section 5.1.
1.3 “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.
1.4 “Aggregated Data” has the meaning in Section 3.1.2(ii).
1.5 “Applicable Laws” means any domestic or foreign law, rule, statute, subordinate legislation, regulation, by-law, order, ordinance, protocol, code, guideline, treaty, policy, notice, direction or judicial, arbitral, administrative, ministerial or departmental judgment, award, decree, treaty, directive, or other requirement or guideline published or in force at any time during the Term which applies to or is otherwise intended to govern or regulate any Person (including any party), property, transaction, activity, event or other matter, including any rule, order, judgment, directive or other requirement or guideline issued by any Governmental or Regulatory Authority.
1.6 “Border0 Indemnitee” has the meaning in Section 11.3.
1.7 “Border0 Metadata” means the metadata that is generated by the Border0 Software residing on the Customer Endpoints resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Border0 Software.
1.8 “Border0 Property” has the meaning in Section 3.2.
1.9 Border0 SaaS Services” means Border0’s propriety software-as-a-service solution as may be more particularly described in an Order Form or online purchasing portal and any Modification thereof.
1.10 “Border0 Software” means the Border0 software product(s) described in an Order Form or online purchasing portal in binary form (or in forms deemed appropriate at the sole discretion of Border0) and any Modification thereof.
1.11 “Border0 Solution” means the Border0 SaaS Services and the Border0 Software.
1.12 “Confidential Information” has the meaning in Section 9.1.
1.13 “Customer Content” means any data, information, content, records, and files, including Personal Information, that is encrypted and transmitted from one Customer Endpoint to one or more other Customer Endpoint(s).
1.14 “Customer Data” means any data, information, content, records, and files, including Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into the Services, including the Customer Content.
1.15 “Customer Endpoint” means a device of Customer or a Permitted User that has the Border0 Software installed upon it.
1.16 “Customer Indemnitee” has the meaning in Section 11.1.
1.17 “Customer User Account” has the meaning in Section 5.1.
1.18 “Discloser” has the meaning in Section 9.1.
1.19 “Documentation” means Border0’s user manuals, handbooks, and guides relating to the Services provided by Border0 to Customer either electronically or in hard copy form/end user documentation relating to the Services, including those available at https://docs.border0.com/ (as such address may be updated from time to time).
1.20 “Fees” has the meaning in Section 8.1.
1.21 “Feedback” has the meaning in Section 3.3.
1.22 “Free Services” means Services that Border0 makes available to Customer free of charge. The term “Free Services” excludes Services offered a Subscription.
1.23 “Force Majeure” has the meaning in Section 14.6.
1.24 “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 Border0, Customer, the Services, the Customer Data or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by, such entities.
1.25 “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.
1.26 “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.
1.27 “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
1.28 “Order Form” means any order form that references this Agreement and that is agreed to by the parties.
1.29 “Personal Information” means information of an identifiable individual transferred by disclosed to or transferred by Customer, or Permitted Users, to Border0 hereunder.
1.30 “Permitted User” has the meaning in Section 5.1.
1.31 “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
1.32 “Recipient” has the meaning in Section 9.1.
1.33 “Services” means the Border0 Solution ordered by Customer under an Order Form or online purchasing portal as described in the applicable Documentation. The term “Services” include Free Services but excludes third party products.
1.34 “Subscription” means Services that Customer purchases under an Order Form or online purchasing portal, as distinguished from Free Services.
1.35 “Term” has the meaning in Section 13.1.
1.36 “Updates” has the meaning in Section 7.1.
- The Services
2.1 Provisioning of the Services.
2.1.1 Paid Subscription. Subject to the terms of this Agreement, including, without limitation, the payment of the Fees set forth in Section 8 hereof,
Border0 hereby grants to Customer a limited, revocable, non-sublicensable (except to permit access by Permitted Users), non-transferable (except as permitted herein), non-exclusive Subscription to access and use the Border0 Solution.
Free Services. Border0 may make Free Services available to Customer. 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 Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Border0, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Border0 will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Border0 terminates Customer’s account, except as required by law Border0 will provide Customer a reasonable opportunity to retrieve its Customer Data. NOTWITHSTANDING THE “WARRANTIES; DISCLAIMERS” SECTION AND “BORDER0 INDEMNITEES” SECTION BELOW, THE FREE SERVICES ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTY AND BORDER0 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 BORDER0’S LIABILITY WITH RESPECT TO THE FREE SERVICES SHALL NOT EXCEED $1,000.00. WITHOUT LIMITING THE FOREGOING, BORDER0 AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (I) CUSTOMER’S USE OF THE FREE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS, (II) CUSTOMER’S USE OF THE FREE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (III) USAGE DATA PROVIDED THROUGH THE FREE SERVICES WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BORDER0 AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE SERVICES, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER.
- License to the Border0 Software and Documentation.
- Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Border0 grants to Customer a non-exclusive, non-transferable, non-sublicensable (except as permitted in Section 2.2.3) limited license to install, operate and use the Border0 Software during the Term on Customer’s devices solely for the purposes set out in the Order Form. Customer’s use of the Border0 Software will be subject to any limitations described in this Agreement, in the Documentation accompanying the Border0 Software, or as otherwise agreed in writing by the parties.
- Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Border0 hereby grants to Customer a non-exclusive, non-sublicensable (except as permitted in Section 2.2.3), non-transferable (except as permitted in Section 2.2.3) limited license to use the Documentation during the Term.
- Customer may sublicense the rights under Sections 2.2.1 and 2.2.2 above to Permitted Users solely for the purposes set out in Sections 2.2.1 and 2.2.2.
- Restrictions on Use. Customer will not itself, and will not permit others (including but not limited to any Permitted Users) to:
- sub-license, sell, rent, lend, lease or distribute the Border0 Solution or any Intellectual Property Rights therein or otherwise make the Border0 Solution available to the third parties other than Permitted Users;
- use the Border0 Solution to permit timesharing, service bureau use or commercially exploit the Border0 Solution;
- use or access the Services: (i) in violation of any Applicable Law or Intellectual Property Right; (ii) in a manner that threatens the security or functionality of the Border0 Solution, including by taking any action that imposes, or that may impose, in Border0’s discretion, an unreasonable or disproportionately large load on Border0’s systems or infrastructure; or (iii) for any purpose or in any manner not expressly permitted in this Agreement;
- use the Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
- 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);
- Modify the Border0 Solution;
- reverse engineer, de-compile or disassemble the Border0 Solution;
- remove or obscure any proprietary notices or labels on the Border0 Solution, including brand, copyright, trademark and patent or patent pending notices;
- access or use the Services for the purpose of building a similar or competitive product or service;
- perform any vulnerability, penetration or similar testing of the Border0 Solution; or
- use or access the Services in any manner that is contrary to any additional restrictions set out in the Order Form or for any purpose or in any manner not expressly permitted in this Agreement.
- Suspension of Access; Scheduled Downtime; Modifications. Border0 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 Customer’s access to or use of the Border0 Solution or any component thereof:
- scheduled maintenance;
- to a Force Majeure event;
- if Customer or any Permitted User violates any provision of this Agreement, including without limitation any of the restrictions set out in Section 2.3 above;
- to address any emergency security concerns;
- if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Law;
- for any other reason as provided in this Agreement; and
- Modify the Border0 Solution provided that Modification does not decrease the material functionality of the Border0 Solution.
- Subcontracting. Border0 may engage third parties to assist it in providing the Services or any part thereof.
- Ownership; Reservation of Rights
- Customer Data. Except as specifically set forth in this Agreement, Customer retains all right, title and interest including all Intellectual Property Rights in or to the Customer Data. Customer grants to Border0:
- a nonexclusive, worldwide, royalty-free, transferable, sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to provide the Services; and
- a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, transferable, sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Data to:
- improve and enhance the 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”). Border0 may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer, including without limitation to improve and enhance the Services and for other Border0 offerings, provided that in all use instances Border0 does not attempt to re-identify the identity of any individual, Permitted User or the Customer, as applicable, as the source of such Aggregated Data. Aggregated Data is not Customer Data and is not the Customer’s Confidential Information.
- My Socket Property. Border0 or its licensors retain all rights, title and interest including all Intellectual Property Rights in and to: (i) the Services, Border0 Solution, [and Documentation]; (ii) the Border0 Metadata; (iii) anything used, developed or delivered by or on behalf of Border0 under this Agreement including without limitation any Aggregated Data; and (iv) any Modifications to the foregoing (“Border0 Property”).
- Customer grants to Border0 and it’s Affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Border0’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our 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. Border0 is not obligated to use any Feedback.
- All rights not expressly granted by Border0 to Customer under this Agreement are reserved.
- Customer User Account; Responsibility for Permitted Users
- In order for Customer to access and use the Border0 Solution, Border0 will: (i) issue one or more accounts (each, a “Customer User Account”) to Customer for use by Customer and all individuals who are Customer’s employees or independent contractors under staff augmentation arrangement with Customer, that Customer wishes to have access to and use of the Border0 Solution (each, a “Permitted User”); and (ii) designate one or more Customer User Accounts as administrator accounts that provides Customer with the capability to administer, maintain, and manage certain features of the Border0 Solution through the Border0 SaaS Services (such account, an “Administrator Account”). In registering for a Customer User Account, Customer will ensure that Permitted Users only use the Border0 Solution through a Customer User Account. Customer will not allow any Permitted User to share the Customer User Accounts with any other Person.
- Customer will use commercially reasonable efforts to prevent unauthorized access to or use of Services and Customer will promptly notify Border0 of any actual or suspected unauthorized use of the Border0 Solution. Border0 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.
- Customer will: (i) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any third party products or systems with which Customer uses Services; (ii) solely responsible for: (A) providing, at its own expense, all network access to the Services, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use the Services; and (B) properly configuring and using the Services and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure; and (iii) use the Services in accordance with this Agreement and Applicable Laws.
- Customer is responsible for identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Border0 Solution. Customer shall ensure that all Permitted Users comply with this Agreement and that none of the Permitted Users bring or maintain any Action (defined below) against Border0, its shareholders, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns and those of its Affiliates in respect of any matter related to or in connection with the subject matter of this Agreement. Customer shall be liable for any breach by a Permitted User of the terms herein.
Customer will generally have access to the Border0’s technical support services (“Support Services”) via: (i) email at the email address(es) indicated on the Order Form, or as otherwise provided by Border0 in writing from time to time, from 9:00 am to 5:00 pm PT each Monday to Friday, excluding statutory and civic holidays observed in Vancouver, British Columbia; or (ii) any other method as set out in the Order Form.
- Updates to the Border0 Software; Third Party Material
- General Updates to Border0 Software. Border0 may, in its sole discretion, include the provision of updates, upgrades, bug fixes, patches and other error corrections as Border0 makes generally available to other licensees of the Border0 Software (collectively, the “Updates”). All Updates will be deemed to be Border0 Software subject to the terms and conditions of this Agreement. Customer is required to accept all Updates made by or on behalf of Border0 to the Border0 Software. If Customer does not wish to install the Updates, it should not license the Border0 Software. Border0 may require that Customer accept and install Updates to the Border0 Software as a condition to the licenses granted in this Agreement. Except for any automatic Updates provided by Border0 pursuant to Section 7.2 below, Border0 will use commercially reasonable efforts to provide Customer with prior notice of such Updates. Upon such notice, Customer will, through its Administrator Accounts, install such Updates promptly following receipt of such Update from Border0.
- Automatic Updates to Border0 Software. The Border0 Software may automatically communicate with Border0’s servers or the Border0 SaaS Services to permit the Border0 Software to perform in accordance its specifications, to record and collect Customer Data and to receive Updates. The Updates may be automatically installed without providing any additional notice or receiving any additional consent. Customer consents to these automatic Updates.
- Third-Party Material. The Border0 Solution may provide links or access to third party content, websites, services or systems. Border0 does not endorse any third-party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third-party content, websites, services, or systems are not under the control of Border0, and if Customer chooses to access any such content, websites, services, or systems Customer does so entirely at its own risk. Customer acknowledges that it may be required to accept terms and conditions applicable to third-party content, websites, services, or systems, that such terms may supersede the terms in this Agreement with respect to the use of such third-party content, websites, services or systems, and Customer agrees to accept and comply with any such terms and conditions. If Customer does not agree to abide by the applicable license terms for any such third-party content, websites, services, or systems, then Customer should not install, access, or use such third-party content, websites, services, or systems. Border0 is not responsible for any disclosure, Modification or deletion of Customer Data resulting from access by such third-party content, websites, services, or systems, or its provider.
- Fees and Payment
- Fees. Customer will pay to Border0 the fees described in any Order Form, online purchasing portal or the fees set forth in the Subscription sign-up (collectively, the “Fees”). All Fees will be charged via the payment information provided by Customer in the Subscription sign-up or in the applicable Order Form. Border0. Unless otherwise set out in an Order Form or online purchasing portal all Fees are identified in US dollars and are payable in advance. If Customer cancels its Subscription, it will not receive a refund for the Fees paid for the current Subscription or then current subscription perio d. If Customer’s use of the Border0 Solution exceeds the service capacity set forth in an Order Form or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
- Changes to the Fees. Border0 reserves the right to modify the Fees payable for renewal terms at the expiration or termination of this Agreement or if Customer consents in writing to add additional features to the Services.
- Disputed Invoices or Charges. If Customer believes Border0 has charged or invoiced Customer incorrectly, Customer will contact Border0 no later than 30 days after receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, 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. Customer may not withhold or setoff any amounts due under this Agreement. Border0 reserves the right to suspend Customer’s access to the 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 Border0 may apply 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.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Border0.
- Suspension. Any permitted suspension of the Services by Border0 pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments of Fees, unless such Fees are subject to a dispute per Section 8.3 under this Agreement.
- Third Party Payment Processors. Customer may be required to provide a valid credit to Border0 or its third party payment processors. By using the Border0 Solution, Customer authorizes Border0’s third party payment processors to post such pre-authorized charge and to charge Customer’s credit car d. Customer may be required to agree to terms and conditions as required by such third party payment processor from time to time. Prior to using the Services and any components thereof, Customer must have all applicable such third party payment processor’s terms and conditions in effect. By using the Services or any component thereof, Customer acknowledges it must be in full compliance with the terms and conditions of such third party payment processor and be in good standing with such third party payment processor. Border0 and its third party payment processors are not responsible for the transmission or processing of any payments Customer makes or receives pursuant to Customer’s use of the Border0 Solution.
- Confidential Information
- Definitions. For the purposes of this Agreement, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser or any of its licensors 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, including, where the Discloser is Customer, Customer’s Confidential Information includes the Customer Data, and, where the Discloser is Border0, Border0’s Confidential Information is the Border0 Property; provided that Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its rights or perform its obligations under this Agreement:
- disclose Confidential Information of the Discloser:
- in the case the Customer to any Person, except to its Permitted Users that have a “need to know” for the purposes of receiving or providing the Product and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or
- in the case of Border0 to Border0’s employees, independent contractors, advisors, consultants, agents and its Affiliates, that have a “need to know” for the purposes of receiving or providing the 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 Services or to its subcontractors for the purpose of providing the 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 9.2, 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 (unless prohibited by Applicable Law) the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or (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 Border0, to potential assignees, acquirers or successors of Border0 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 Border0.
- Injunction and other equitable relief. Each party acknowledges and agrees that a breach or threatened breach by such party of any of its obligations under Section 8 or, in the case of Customer, Section 2.3 or Section 3, would cause the other party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
- Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each party will promptly return to the other party or destroy all Confidential Information 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, Border0 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
- Mutual Representations and Warranties. Each party represents and warrants to the other that this Agreement has been duly executed and delivered and constitutes a valid and binding agreement enforceable against such party in accordance with its terms.
- Customer Representations and Warranties. Customer represents and warrants to, and covenants with, Border0 that: (i) 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 Applicable Laws including applicable privacy laws, to enable Border0 to provide the Border0 Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Border0 and to or from all applicable third parties; and (ii) Customer and its Permitted Users will comply with all Applicable Laws.
- GENERAL DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BORDER0 DOES NOT WARRANT THAT THE BORDER0 SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE BORDER0 SOLUTION. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, THE BORDER0 SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BORDER0 TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND BORDER0 DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY LICENSED THIRD-PARTY TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, BORDER0 HEREBY DISCLAIMS ALL IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, 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, BORDER0 EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE BORDER0 SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Border0 Indemnities. Border0 will defend, indemnify and hold harmless Customer, and its officers, directors, employees and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitees 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 of an Border0 Indemnitee) that arise from or relate to any allegation that the Border0 Solution infringe any third-party Intellectual Property Right in Canada or the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (i) incorporation of any of the Border0 Solution into, or any combination, operation, or use of the Border0 Solution with, any products or services not provided or authorized by Border0, unless such infringement would also have resulted solely from the use of the Border0 Solution without their incorporation in, or combination, operation or use, with such other products or services; (ii) Modification of the Border0 Solution other than by Border0 or with Border0’s express written approval; or (iii) unauthorized use of the Border0 Solution. This Section 11.1 states the Border0’s sole liability to, and the Customer Indemnitees sole and exclusive remedy against, Border0 for any third party claim described in this section.
- If the Border0 Solution is, or in Border0’s opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any portion of the Border0 Solution are enjoined or threatened to be enjoined, Border0 may, at its option and sole cost and expense:
- obtain the right for the Customer to continue to use the affected Border0 Solution materially as contemplated by this Agreement;
- Modify or replace Border0 Solution, in whole or in part, to seek to make the Border0 Solution (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Border0 Solution under this Agreement; or
- if Border0 determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement, require Customer to immediately cease all use of the Border0 Solution or part or feature thereof and provide pro rata refund of any unused prepaid Fees for the terminated Border0 Solution, if applicable.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
- Customer Indemnities. Customer will defend, indemnify and hold harmless Border0, and its officers, directors, employees and agents (each, a “Border0 Indemnitee”) from and against any and all Losses incurred by Border0 Indemnitees arising out of or relating to any Action by a third party (other than an Affiliate of an Border0 Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of Sections 2.3, 10.2, or 14.4; or (iii) unauthorized use of the Border0 Solution (or any part thereof) by Customer or any Permitted User. Customer will fully cooperate with Border0 in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Border0.
- Indemnification Procedure. The indemnifying party’s obligations as set forth above are expressly conditioned upon each of the foregoing: (i) the indemnified party promptly notifying the indemnifying party in writing of any threatened or actual claim or suit, provided, however, that failure to give prompt notice will not relieve the indemnifying party of any liability hereunder (except to the extent the indemnifying party has suffered actual material prejudice by such failure); (ii) the indemnifying party having sole control of the defense or settlement of any claim or suit (provided the indemnifying party may not settle any claim without the indemnified party’s written consent unless it unconditionally releases the indemnified party of all liability); and (iii) the indemnified party (at the indemnifying party’s expense) reasonably cooperating with the indemnifying party to facilitate the settlement or defense of any claim or suit.
- 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. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE BORDER0 SOLUTION 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.
- TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 12.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- EXCEPTIONS. THE EXCLUSIONS AND LIMITATIONS IN SECTIONS 12.1 AND 12.2 DO NOT APPLY TO LIMIT: (I) EITHER PARTY’S OBLIGATIONS UNDER SECTIONS 11.1 and 11.3; (II) LOSSES ARISING OUT OF OR RELATING TO CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 2.3; (III) EITHER PARTY’S BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION) (PROVIDED THAT BORDER0’S LIABILITY FOR AN ACCIDENTAL OR UNLAWFUL DESTRUCTION, LOSS, ALTERATION, UNAUTHORIZED DISCLOSURE OF, OR ACCESS TO CUSTOMER DATA, RESULTING FROM A BREACH OF SECTION 9 (CONFIDENTIAL INFORMATION) IS LIMITED TO THE LIABILITY CAP IN SECTION 12.1 ABOVE); (IV) CUSTOMER’S PAYMENT OBLIGATIONS IN THIS AGREEMENT; OR (V) A PARTY’S GROSS NEGLIGENCE, WILFUL MISCONDUCT OR FRAUD.
- Term and Termination
- Term. This Agreement commences on the Effective Date and continues until all Subscriptions hereunder have expired or have been terminated unless earlier terminated (“Term”). The term of each Subscription shall be as specified in the applicable Order Form or online purchasing portal. Except as otherwise specified in an Order Form or online purchasing portal, 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.
- Termination for Convenience. Border0 may terminate this Agreement at any time and for any reason without liability or penalty by providing at least 30 days advance written notice to Customer. Upon Border0’s termination of this Agreement pursuant to this Section 13.2, Border0 will refund to Customer, on a pro-rata basis, any unused Subscription based Fees prepaid under this Agreement for any period following the effective date of termination.
- Termination for Cause
- 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. For clarity, a material breach under this Agreement includes, but is not limited to, Customer’s failure to pay the applicable Fees when due.
- Notwithstanding the foregoing, Border0 may terminate this Agreement immediately if: (i) Customer breaches any restrictions on use in Section 2.3; or (ii) if required by Applicable Law.
- If this Agreement is terminated by Border0 in accordance with this Section 13.3, Customer will pay any unpaid Fees covering the remainder of the term of all Subscriptions and Order Forms. If this Agreement is terminated by Customer pursuant to Section 13.3.1(i), Border0 will provide Customer with a pro rata refund of any unused Fees prepaid covering the remainder of the term of all Order Forms after the effective date of termination.
- 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 the Services;
- All Order Forms will terminate; and
- All Fees due and payable and any amounts due to Border0 are immediately due and are to be immediately paid by Customer to Border0. No expiration or termination will affect or relieve Customer's obligation to pay all Fees that may have become due before such expiration or termination or entitle the Customer to any refund.
- 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 10.2 (General Disclaimer), Section 11 (Indemnities); Section 12 (Limitation of Liabilities), Section 13.4 (Effect of Termination), Section 13.5 (Survival), and Section 14 (General Provisions).
- 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 five 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 will be sent: (i) if to Border0, as follows:
Border0 Email: email@example.com
and (ii) if to Customer, to the current postal or email address that Border0 has on file with respect to Customer. Border0 may change its contact information by posting the new contact information on its website, through the Border0 Solution or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Border0 current at all times during the Term.
- Assignment. Neither party may assign the Agreement of any of its rights or obligations under the Agreement without the prior written consent of the other party, except that each party may assign the Agreement without the consent of the other party as part of a corporate reorganization, or upon a change of control, consolidation, merger, sale of all or substantially all of its business or assets related to the Agreement, or a similar transaction or series of transactions, provided that Customer shall not assign this Agreement to any competitor of Border0. Any purported assignment or delegation by a party in violation of this Section will be null and void. Border0 may assign any of its rights or delegate any of its obligations hereunder to its Affiliate without the Customer’s consent. Subject to the foregoing, 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, a party may commence lawsuits to seek injunctive relief with respect to a violation of its Intellectual Property Rights or breach of confidentiality obligations; in each case, in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Export Restrictions. Customer shall not to directly or indirectly export, re-export or import all or any portion of the Border0 Solution without first obtaining all required licenses, permits and permissions. Border0 makes no representation or warranty that the Border0 Solution may be exported without 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. 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 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”) This Section does not apply to any of Customer’s obligations under Sections 2.3, 8, 9, 10 or 11.
- Customer Lists. Border0 may identify the Customer by name and logo as a Border0 customer on Border0’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.
- 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 will be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Border0’s relationship to 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 the other party.
- Entire Agreement. This Agreement (including all Order Forms hereunder) 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. This Agreement replaces and terminates any prior agreed agreement, terms of service or other terms and conditions agreed between the parties related to the Border0 Solution. Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services or Border0 Solution; (ii) do not override or form a part of this Agreement (including without limitation any Order Form); and (iii) are void.
- 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. NOTWITHSTANDING THE FOREGOING, BORDER0 MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON BORDER0’S WEBSITE. UNLESS OTHERWISE INDICATED BY BORDER0, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON SUCH WEBSITE (WHICHEVER IS EARLIER).
- 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.