Terms of Service
This is a legally binding agreement between IGLOO Inc. (“IGLOO”) and Customer (as defined below). Please read it carefully. By registering or entering into a contract for the Offering (as defined below) or using the Hosted Service (as defined below), you:
- represent that you have the authority to bind Customer to these terms; and
- agree to the following terms on behalf of the Customer.
If you do not have such authority or do not agree to these terms, you may not access or use the Hosted Service.
IGLOO and Customer agree as follows:
1. Definitions and Interpretations
1.1 Definitions. Capitalized terms used in this Agreement, and not otherwise defined in this Agreement, shall have the following meanings:
- “Agreement”, “this Agreement”, “the Agreement”, “hereof”, “herein”, “hereto”, “hereby”, “hereunder” and similar expressions mean this IGLOO Offering Terms of Service as it may be confirmed, amended, modified, supplemented or restated.
- “AUP” means IGLOO’s acceptable use policy for use of the Hosted Service as such policy may be supplemented, modified, amended or otherwise changed from time to time, the current form of which is available here.
- “CCPA” means The California Consumer Privacy Act of 2018.
- “Confidential Information” includes any information, document, material, idea or data which is disclosed by one party hereto to the other party hereto, whether orally, electronically or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information, document, material, idea or data and the circumstances of the disclosure, including information regarding a party’s products and services, technology, business plans, prices, financial information and other trade secrets or confidential information, and anything tangible from which such information may be obtained. Confidential Information includes the terms and conditions of this Agreement. Confidential Information, however, shall not include any document, material, idea, data or other information which: (i) is known to the receiving party under no obligation of confidence, at the time of disclosure by the other party; (ii) is lawfully obtained by the receiving party from a third party who, in making such disclosure, breaches no obligation of confidence to the other party; (iii) is or becomes publicly known through no wrongful act of the receiving party; (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information; or (v) is disclosed by the other party to a third party under no obligation of confidence. The onus of proving that any of the above-mentioned exceptions applies is on the receiving party. Confidential Information of Customer shall not include any uniform resource locators or domain names that are used by Customer in connection with the Hosted Service or an IGLOO Environment.
- “Content” includes text, messages, files, photos, video, sounds, musical works, works of authorship, links, emails, postings, code, data, images, graphics, video, chat, files, works of authorship or other materials.
- “Customer” means the Person registering or entering into a contract for the Offering and entering into this Agreement with IGLOO for the provision of Services.
- “Customer Data” means any information (including Personal Information), data, communication or Content uploaded, generated, stored or transmitted by Customer and/or Named Users as part of, or in conjunction with, the Hosted Service, but excludes any uniform resource locators or domain names that are used by Customer in connection with the Hosted Service or an IGLOO Environment.
- “Customer Technology” means any information, materials and technology owned or controlled by Customer that the use thereof is reasonably required by IGLOO in order to perform any of the Services.
- “Documentation” means the documentation provided by IGLOO to Customer under this Agreement that is in connection with the Services and made available at https://customercare.igloosoftware.com.
- “Effective Date” means the date on which Customer registers for the Offering and, by so doing, agrees to the terms of this Agreement.
- “Extracted Data” means anonymized data created by IGLOO from Usage Data.
- “Hosted Service” means the IGLOO-hosted software platform provided in accordance with the terms of the Offering to which Customer acquires rights to access and use under this Agreement and includes the development and availability of an IGLOO Environment.
- “IGLOO Environment” means an online environment in accordance with the terms of the Offering developed by IGLOO for Customer or by Customer alone that is hosted and maintained by IGLOO.
- “IGLOO Trademarks” means the registered and unregistered trademarks, trade names, logos or service marks of IGLOO as used by IGLOO in connection with the Hosted Service and Services from time to time.
- “IP Rights” means any right that is granted or recognized under any Canadian, United States, European or foreign legislation regarding patents, copyrights, neighbouring rights, moral rights, trademarks (including trade names and service marks), trade secrets, confidential information, industrial designs, design rights, mask work, integrated circuit topography, privacy and publicity rights and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing.
- “Marketplace” means IGLOO’s online marketplace of software applications developed and licensed by IGLOO or third party software developers which interoperate with the Hosted Service.
- “Named User” means an individual with a member account in an IGLOO Environment who is authorized by Customer to access and use such IGLOO Environment.
- “Offering” means the suite of Services offered by IGLOO to Customer subject to the terms of this Agreement and for the use of which Customer has registered or contracted, as described by the terms set out on the applicable IGLOO webpage, contract or program document describing such Offering.
- “Person” means a natural person or any legal, commercial or governmental entity, such as, but not limited to, a corporation, general partnership, joint venture, limited partnership, limited liability company, trust, business association, group acting in concert, or any Person acting in a representative capacity.
- “Personal Information” means information about an identifiable individual or household in the IGLOO Environment.
- “Professional Services” means the professional services provided by IGLOO in respect of the Hosted Service in accordance with the terms of the Offering, unless otherwise agreed by IGLOO.
- “Services” means any of the Hosted Service, Professional Services and/or Support Services provided by IGLOO under this Agreement.
- “Support Services” means the support services provided by IGLOO in respect of the Hosted Service in accordance with the terms of the Offering, unless otherwise agreed by IGLOO.
- “System” means the proprietary and third-party information technology systems used by IGLOO to provide the Hosted Service.
- “Term” means the period from the Effective Date to the end date set by IGLOO for the provision of the Offering. The Term may be extended by IGLOO at its discretion and with notice of such extension to Customer.
- “Third Party Services” means third party applications, services, software, products, networks, systems, directories, websites, databases and information which the Hosted Service links to, integrates with or which Customer may connect to or enable in conjunction with the Hosted Service, including Third Party Services which may be integrated directly into an IGLOO Environment or Third Party Services available through the Marketplace.
- “Usage Data” means data or information generated by IGLOO with respect to Customer’s use and/or operation, and its Named Users’ use and/or operation of, the Services and the System.
1.2 Certain Rules of Interpretation. The parties agree to the following interpretive terms and conditions:
- words importing the singular number include the plural and vice versa and words importing gender include all genders in this Agreement;
- reference to any agreement, indenture or other instrument in writing means such agreement, indenture or other instrument in writing as amended, modified, replaced or supplemented from time to time, unless otherwise agreed to herein;
- every use of the words “including” or “includes” in this Agreement is to be construed as meaning “including, without limitation” or “includes, without limitation”, respectively;
- any capitalized term used in this Agreement that is not defined in Section 1.1 or elsewhere in this Agreement will have the generally accepted industry or technical meaning given to such term;
- the division of this Agreement into Sections and the insertion of headings are for convenience of reference only and shall not affect the construction or interpretation of this Agreement.
2. Hosted Service
2.1 Rights to Use the Hosted Service. Subject to the terms and conditions of this Agreement, including without limitation the restrictions in Section 2.2, IGLOO grants to Customer a non-exclusive, worldwide, non-assignable, non-transferable and limited license during the Term to access and use the Hosted Service solely for Customer’s own business purposes and to grant each Named User the limited right to use Customer’s IGLOO Environment(s) for the purposes related to Customer’s own business purposes, all in accordance with this Agreement and the Documentation.
2.2 Restrictions on Use.
- Customer shall not, and shall not permit Named Users or any other Person to, directly or indirectly do any of the following: (i) reverse engineer, decompile, disassemble or otherwise attempt to discover the source code or underlying algorithms of the Hosted Service (or any part thereof) and/or the System; (ii) modify, translate, or create derivative works based on any portion of the Hosted Service; (iii) rent, lease, distribute, license, sublicense, sell, resell, assign, or otherwise commercially exploit any portion of the Hosted Service (or any part thereof) and/or the System or make any portion of the Hosted Service available to any Person (other than Named Users); (iv) use any of the Hosted Service for timesharing or service bureau purposes; (v) publish or disclose to any Person evaluations of the Services; (vi) tamper with the security of any portion of the Hosted Service and/or the System; (vii) knowingly access data on or available through the Hosted Service and/or the System not intended for Customer or Named Users; (viii) attempt to probe, scan or test the vulnerability of any portion of the System or to breach the security or authentication measures without the written consent of an authorized IGLOO representative.
- Customer shall not, and shall not permit Named Users or any other Person to use the Hosted Service to directly or indirectly do any of the following: (i) violate any applicable local, provincial, state, federal or foreign law, rule or regulation; (ii) breach, or engage in any activity that would constitute a breach of, the AUP; and/or (iii) create, solicit, transmit, upload or publish any comment, request, suggestion, proposal, image, data file or other communication which: (1) violates any rights of others, including infringement of any IP Rights; (2) contains or embodies any computer virus, harmful component or corrupted data; (3) adversely affects the performance or availability of any of the Hosted Service or the System; or (4) is used to impersonate any Person, including IGLOO personnel.
2.3 Named Users and Accounts.
- Each Named User will be entitled to access an IGLOO Environment by means of a member account (“Account”) using a unique username and password.
- Customer will be issued one initial master Account for accessing the Hosted Service. Through such master Account, Customer will be able to establish additional Accounts for Named Users. Customer is responsible for authorizing and controlling access to the Hosted Service for Named Users. Customer agrees to notify IGLOO immediately upon becoming aware of any breach of security or unauthorized use of any Accounts (including the master Account).
- Each Account may only be assigned to and used by one individual at a time and may not be shared with any other individual. An Account may be reassigned by Customer to a new individual replacing one who no longer requires ongoing use of the Account.
- Customer is responsible for ensuring that: (i) each individual accessing an IGLOO Environment has their own Account; (ii) only Named Users may access and use any password protected areas of an IGLOO Environment or the Hosted Service; (iii) Named Users are solely responsible for the confidentiality of and use of the username and password for their Account; and (iv) Named Users may not transfer any Account to any third party without IGLOO’s prior written approval. Customer shall be responsible and liable for all activity that occurs under all Named Users’ Accounts, whether authorized by Customer or Named Users (as the case may be) or not. Customer acknowledges and agrees that in no event shall IGLOO be liable, directly or indirectly, to Customer or Named Users for any loss or damage as a result of any activity under any Accounts; provided that the foregoing shall not apply to the extent that any unauthorized access was initiated by any IGLOO personnel or the failure of IGLOO to comply with Section 3.8 of this Agreement.
2.4 Customer and Named User Information.
- As a condition of using the Hosted Service, Customer agrees to provide true, accurate, current and complete information about Customer to the extent necessary for IGLOO to provide the Hosted Service and, to the extent possible, shall cause each Named User to maintain and promptly update their IGLOO member profile information to keep them true, accurate, current and complete.
- If Customer provides any information about Customer that is untrue or inaccurate or if IGLOO has reasonable grounds to believe that such information is untrue or inaccurate, IGLOO may suspend or terminate access to the Hosted Service for Customer and refuse any and all current or future use of the Hosted Service by Customer following notice to Customer of the incorrect information and a failure by Customer to correct said information within thirty (30) days of such notice.
- If any Named User provides any Account or member profile related information that is untrue or inaccurate or if IGLOO has reasonable grounds to believe that such information is untrue or inaccurate, IGLOO may suspend or terminate access to the Hosted Service for such Named User and refuse any and all current or future use of the Hosted Service by such Named User following notice to Customer of the incorrect information and a failure by Customer to correct, or have corrected, said information within thirty (30) days from such notice.
2.5 Usage Limits. Customer’s access to and use of the Hosted Service is restricted to five thousand (5000) Named Users and ten (10) TB of data storage, unless otherwise agreed by IGLOO in writing (including via email).
2.6 Additional Customer Responsibilities. Customer is solely responsible for obtaining and maintaining all equipment, computers, and communications required to access the Hosted Service and for all expenses related thereto. Customer is responsible for complying with, and causing Named Users to comply, with the AUP. Customer will notify IGLOO immediately of any actual or suspected unauthorized use of Hosted Service or any Accounts or other breach of security in relation to the Hosted Service, Customer Data or the System to which Customer becomes aware.
3. Customer Data
3.1 Data Residency. The IGLOO Environment shall be hosted in the United States of America.
3.2 Business Purpose. Customer Data is received by IGLOO for a business purpose (as that term is defined in the CCPA); such business purpose is the provision by Igloo of the Services.
3.3 Monitoring. IGLOO has no obligation to monitor or pre-screen any Customer Data. Customer shall be solely responsible at all times for monitoring Customer Data and for ensuring that all Customer Data complies with this Agreement. Customer is solely responsible for the accuracy, quality, integrity and legality of Customer Data and the means by which Customer acquires Customer Data.
3.4 Rights to Customer Data. Customer, its Named Users and each of their respective licensors retain all rights in and to all Customer Data. Customer hereby grants to IGLOO a non-exclusive, non-transferable royalty-free, fee-free, worldwide right and license during the Term to use, reproduce, modify, adapt, publish, translate, distribute, perform, and display Customer Data solely on and through the Hosted Service and the System for the sole purpose of providing the Hosted Service to Customer, which includes making Customer Data available to Named Users. All rights in Customer Data held by Customer and not granted to IGLOO are reserved to Customer. Customer represents and warrants that Customer is the owner or licensor of all rights to all Customer Data or otherwise has the rights to grant the license set forth in this Section 3.4. The foregoing representation and warranty shall survive the expiration or termination of this Agreement. IGLOO shall not access Customer Data except: (i) as necessary to respond to performance problems with the Services; or (ii) at Customer’s request.
3.5 Quality Testing. Notwithstanding Section 3.4, IGLOO may from time to time create and use a back up version of Customer’s IGLOO Environment to test new releases against to ensure quality control. Such back up would be uploaded to a preview environment for testing. Such preview environment will be subject to the same security policies (as outlined in Section 3.8) as the Customer’s production environment.
3.6 Analytical Data.
- Customer agrees that, except as otherwise set forth in this Agreement, IGLOO shall be entitled to generate Usage Data and Extracted Data based on Customer’s and its Named Users’ respective use and operation of the Services in order to improve IGLOO’s products and services generally and to provide Customer with the Hosted Service and with reports on its (and its Named Users’) use of the Services.
- Extracted Data shall not contain, disclose or otherwise identify the name of Customer, any Named User(s) or any Person who uploads, generates or transmits Customer Data, nor shall Extracted Data contain any of Customer’s Confidential Information. Customer shall own all rights, including all IP Rights that Customer holds in the Customer Data, in and to all Usage Data. IGLOO shall exclusively own all rights, including all IP Rights, in and to all Extracted Data, whether as part of derivative works or otherwise.
3.7 Personal Information. Customer Data may include Personal Information. Where Customer discloses Personal Information to IGLOO or transfers Personal Information to IGLOO for processing, Customer is deemed to represent, warrant and covenant to IGLOO that: (i) Customer is solely and exclusively responsible for the collection, accuracy or completeness of Personal information disclosed, or provided to, IGLOO; and (ii) all such Personal Information disclosed to IGLOO has been or will be collected and disclosed in accordance with all applicable laws. Customer hereby grants to IGLOO the right to collect, store, access and use the Personal Information for the purposes of providing the Services to Customer. Customer will promptly respond to enquiries concerning any Personal Information provided to IGLOO and will promptly address all enquiries concerning such information. Customer has obtained and will continue to obtain all necessary consents from those individuals whose Personal Information is disclosed or transferred to IGLOO to grant the Personal Information rights herein to IGLOO. IGLOO: (i) will not sell (as that term is defined in the CCPA) any Personal Information; (ii) will retain, use or disclose any Personal Information only for the purpose of providing the Services; and (iii) certifies that it understands and will comply with its obligations and restrictions under this Agreement and applicable privacy laws, including the CCPA.
3.8 Data Security. IGLOO shall, during the Term, maintain and enforce a formal security program in accordance with industry standards with adequate and appropriate safety and security procedures in providing the Services, including: (i) System (including Customer Data), database and web server security measures; and (ii) the utilization of firewall systems intended to provide security from unauthorized intrusion, in accordance with industry standard. IGLOO shall promptly notify Customer of any material failure of such safety and security procedures or any security breach related to the System or IGLOO’s network in accordance with IGLOO’s Security Incident Response policy, which may be amended from time to time, including to improve IGLOO’s practices and procedures or to address changes in applicable law, provided that any such amendments shall not, taken as a whole, reduce IGLOO’s security incident response commitments. The current form of IGLOO’s Security Incident Response policy is available here.
4.1 Professional Services. From time to time, IGLOO may provide Professional Services as requested by Customer. Professional Services shall be subject to the terms and conditions of this Agreement. IGLOO shall perform such Professional Services in the capacity of an independent contractor and not as an employee or agent of Customer. Customer shall promptly provide all reasonably required information, materials and resources as necessary to enable IGLOO to carry out the Professional Services.
4.2 Customer Technology. Customer hereby grants to IGLOO a royalty-free, fully paid license to Customer Technology during the Term on an as-needed basis for the purposes of performing Services requested by Customer and to integrate and test Integrations (as defined below) or Third Party Services with the Hosted Service. Customer retains all right, title and interest in and to Customer Technology including any IP Rights therein, except for the limited licenses granted under this Agreement.
4.3 Subcontractors. Customer acknowledges and agrees that IGLOO may have the need to utilize subcontractor(s) or supplementary providers(s) (collectively “Subcontractors”) to maintain the System or to provide additional support or specialized services in connection with the System or the Hosted Service, including intrusion detection, performance management, System monitoring and network scanning. The cost of any Subcontractors and/or supplementary provider(s) employed or retained by IGLOO shall be the sole responsibility of IGLOO.
5. Customer Support
5.1 Support Services.
- Subject to the terms and conditions of this Agreement, IGLOO shall provide Support Services. IGLOO’s obligations to provide Support Services shall not apply in respect of problems, incidents or deficiencies that result: (i) from factors outside of IGLOO’s reasonable control; (ii) from any improper actions or inactions of Customer, or its contractors, suppliers, service providers, any Named User or other third parties; or (iii) exclusively from Customer’s or a third party’s faulty equipment or software.
- IGLOO maintains the right to limit Support Services in accordance with the terms of the Offering. Requests for Support Services may only be made to IGLOO by/through Customer’s authorized support contact.
5.2 Monitoring. During the Term of the Agreement, IGLOO will monitor the Hosted Service to determine whether it is available and performing in accordance with the provisions of this Agreement. In the event that IGLOO discovers or is notified by Customer that the Hosted Service is not available or not performing in accordance with the provisions of this Agreement, IGLOO will use its reasonable commercial efforts to determine the source of the problem and to correct it.
6. Third Party Services
6.1 Integration with Third Party Services. The Hosted Service may contain features or functionalities, including widgets, that are designed to interoperate (“Integrations”) with Third Party Services. Integrations (but excluding Third Party Services) are deemed to be part of the Hosted Service. If the provider of a Third Party Service for which IGLOO offers an Integration (i) ceases to make such Third Party Service available for interoperation or (ii) introduces a fee with respect to such Integration with the Third Party Service, IGLOO, in its sole discretion, may cease providing such Integration and the corresponding features of the Hosted Service at any time and without entitling Customer to any compensation. To the extent IGLOO is reasonably able, IGLOO shall provide Customer with advance notice should the interoperation of any Integration be discontinued.
6.2 Third Party Services. Customer’s access to and use of Third Party Services are governed solely by the terms and conditions of such Third Party Services, and IGLOO does not endorse, is not responsible or liable for, and makes no representations and warranties as to any aspect of any Third Party Services, including their content or the manner in which they handle data (including Customer Data) or any interaction between Customer and the provider of such Third Party Services. Customer acknowledges and agrees that, except for IGLOO’s gross negligence or wilful misconduct, IGLOO is not responsible or liable for any damage or loss caused or alleged to be caused by or in connection with Customer’s (or its Named Users’) enablement of, access to or use of any such Third Party Services, or any reliance on the privacy practices, data security processes or other policies of such Third Party Services. Named Users may be required to register for or log into such Third Party Services on their respective websites or service. By installing or enabling any Third Party Services for use with the Hosted Service or an IGLOO Environment, Customer is expressly permitting IGLOO to: (i) permit the provider of that Third Party Service to access Customer Data as required for the interoperation of that Third Party Service with the Hosted Service or the applicable IGLOO Environments; and (ii) access such Customer Data as necessary to facilitate the use or enablement by Customer or Named Users of such Third Party Services. IGLOO is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by any Third Party Service.
7. Intellectual Property Rights
7.1 Ownership. The Hosted Service and Documentation (including any Content therein that is not Customer Data), all copies and portions thereof, IGLOO Trademarks and all improvements, enhancements, modifications and derivative works thereof (excluding all Customer Data and Customer Technology), and all IP Rights therein (collectively, “IGLOO Property”), are and shall remain the sole and exclusive property of IGLOO and its licensors and are protected by domestic and international laws and treaties, and shall remain the sole property of IGLOO or IGLOO’s licensors. Customer agrees not to, and not to cause or permit others to: (i) remove any proprietary notices, markings and legends appearing on or contained in IGLOO Property, the Hosted Service and/or Deliverables not owned by Customer; or (ii) change any security or right management technology used in connection with any IGLOO Property.
7.2 Rights Reserved By IGLOO. Customer’s rights to use the Hosted Service and other IGLOO Property shall be limited to those expressly granted in this Agreement. No other rights with respect to the Hosted Service or any other IGLOO Property (including all related IP Rights) are implied. Customer agrees that Customer shall take commercially reasonable measures to protect IGLOO’s proprietary and IP Rights in IGLOO Property and will comply with the terms of this Agreement to protect IGLOO’s proprietary and IP Rights in IGLOO Property. Any discoveries, enhancements, improvements, customizations, translations or other modifications made to, or derived from, IGLOO Property, and all related IP Rights therein, shall be owned exclusively by IGLOO.
7.3 Submissions. Notwithstanding any term of this Agreement, any suggestions, enhancement requests, recommendations or other feedback provided by Customer to IGLOO relating to the Services (collectively “Submissions”) shall become IGLOO’s sole property. IGLOO shall exclusively own all rights, including all IP Rights, in and to all Submissions. IGLOO shall be entitled to the unrestricted use and dissemination of Submissions for any purpose, commercial or otherwise, without acknowledgement or compensation to Customer. In the event that any IP Rights in and to any Submissions vest, or has vested, in Customer, Customer hereby assigns to IGLOO all of Customer’s right, title and interest in all Submissions and Customer hereby waives to and in favour of IGLOO any of its moral rights therein.
8.1 IGLOO Branding and Logo. Customer agrees that IGLOO has the right to place a “Powered by IGLOO” button in the bottom right hand corner of every page in IGLOO Environments.
8.2 IGLOO Marketing. Customer grants to IGLOO during the Term a non-exclusive, non-transferable license to use Customer’s name and logo solely in accordance with this Section 8.2. During the Term, IGLOO may publicly refer to Customer and identify Customer as a customer of IGLOO, whether orally, in writing, through the use of a pre-approved screen shot of IGLOO Environments, or in a customer directory list on IGLOO’s public website or other IGLOO marketing collateral. IGLOO may use Customer’s name and logo in a press release disclosing the parties and the nature of this Agreement and in IGLOO advertising, in each case with the prior written approval of Customer, such approval not to be unreasonably withheld. Any other public or marketing reference to Customer by IGLOO shall require the written consent of Customer, such consent not to be unreasonably withheld.
9. Limited Warrenty
9.1 Representations and Warranties. IGLOO represents and warrants to Customer that all work performed by IGLOO under this Agreement (including the provision of any Services and the supply of any Deliverables) will be performed: (i) with due care and skill and in accordance with industry practice; (ii) using only properly skilled, qualified and experienced personnel; and (iii) in compliance with all applicable United States and Canadian laws, including in relation to privacy and including the CCPA.
9.2 SUBJECT TO THE EXPRESS REPRESENTATIONS AND WARRANTIES SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE HOSTED SERVICE AND ALL OTHER SERVICES (INCLUDING THE USE THEREOF) ARE PROVIDED “AS IS” WITHOUT EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF ANY KIND AND IGLOO DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, INCLUDING, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR PURPOSE OR THOSE ARISING BY LAW, STATUTE, USAGE OR TRADE, OR COURSE OF DEALING REGARDING OR RELATED TO THIS AGREEMENT, THE HOSTED SERVICE, THE DOCUMENTATION, THE SERVICES, DELIVERABLES OR ANY MATERIALS OR SERVICES FURNISHED OR PROVIDED TO CUSTOMER UNDER THIS AGREEMENT. IGLOO DOES NOT WARRANT THAT THE HOSTED SERVICE WILL BE ERROR FREE OR WILL OPERATE WITHOUT INTERRUPTION. EXCEPT FOR IGLOO’S OBLIGATIONS THAT ARE EXPRESSLY SET FORTH IN THIS AGREEMENT, THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE HOSTED SERVICE REMAINS WITH CUSTOMER. EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, IGLOO DOES NOT WARRANT THE ACCURACY OR SECURITY OF ANY CUSTOMER DATA.
10. Limitation of Liability
10.1 IN NO EVENT SHALL IGLOO BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING DAMAGES FOR LOSS OF DATA, LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION OR LOSS OF BUSINESS INFORMATION) ARISING OUT OF OR RELATED TO THE SERVICES OR THIS AGREEMENT, HOWEVER CAUSED, INCLUDING UNDER ANY THEORY OF LIABILITY, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE OR OTHERWISE, EVEN IF IGLOO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF THE THEORY OF RELIEF.
10.2 IN NO EVENT SHALL IGLOO’S TOTAL CUMULATIVE LIABILITY TO CUSTOMER HEREUNDER EXCEED FIVE HUNDRED UNITED STATES DOLLARS (USD $500).
10.3 THE LIMITATIONS IN SECTIONS 10.1 AND 10.2 SHALL APPLY REGARDLESS OF THE CAUSES OR CIRCUMSTANCES GIVING RISE TO THE CLAIM, EVEN IF SUCH CLAIM IS BASED ON BREACH OF CONTRACT, NEGLIGENCE OR OTHER TORT, AND SHALL SURVIVE A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY OR THIS AGREEMENT.
10.4 SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES. IF ANY JURISDICTION HAVING APPLICABILITY TO THIS AGREEMENT DOES NOT PERMIT ANY SUCH EXCLUSION OR LIMITATION, IGLOO’S TOTAL LIABILITY TO CUSTOMER IN CONNECTION WITH ANY INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES SHALL BE LIMITED BY SECTION 10.2.
11.1 Customer Information. For the purposes of this Agreement, the Confidential Information of Customer shall include any Personal Information of each Named User that is uploaded, generated or stored by Customer or such Named User in the Hosted Service.
11.2 Protection. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information disclosed in connection with this Agreement by using at least the same degree of care as such party employs with respect to its own Confidential Information of a like kind or nature, but no less than a reasonable degree of care. Each party agrees not to use the Confidential Information of the other party for any purpose not expressly permitted by this Agreement and shall limit the disclosure of the Confidential Information to employees, contractors, subcontractors, agents or representatives of the receiving party whose knowledge of such Confidential Information will assist with the provision by IGLOO of the Services and who are bound in writing by confidentiality terms no less restrictive than those contained herein.
11.3 Compelled Disclosure. The receiving party may disclose Confidential Information of the disclosing party if it is compelled by law to do so, provided the receiving party gives the disclosing party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing party’s cost, if the disclosing party wishes to contest the disclosure. If the receiving party is compelled by law to disclose the disclosing party’s Confidential Information as part of a civil proceeding to which the disclosing party is a party, and the disclosing party is not contesting the disclosure, the disclosing party will reimburse the receiving party for its reasonable cost of compiling and providing secure access to such Confidential Information.
12.1 Term and Renewal. This Agreement commences on the Effective Date and continues until the expiration of the Term.
12.2 Termination for Breach. In the event that IGLOO believes that Customer has materially breached any obligations under this Agreement, IGLOO shall so notify Customer in writing via email. Customer shall have ten (10) days from the receipt of notice to cure the alleged breach and to notify IGLOO in writing via email that cure has been effected. If the breach is not cured by Customer or the notice of breach is not withdrawn by IGLOO within ten (10) days, IGLOO shall have the right to terminate the Agreement without further notice. The foregoing cure period shall not apply to breaches relating to the license grants or confidentiality provisions In the event of early termination permitted by this Agreement, Customer shall immediately cease use of the Hosted Service.
12.3 Immediate Termination. Either party may terminate this Agreement effective immediately (without providing a right to cure) if the other party institutes or if any proceeding is commenced against or affecting the other party: (i) seeking to adjudicate it as bankrupt or insolvent; (ii) seeking liquidation, dissolution, winding up, arrangement, protection, relief or composition of it or any of its property, assets or debt; (iii) making a proposal with respect to it under any law relating to bankruptcy, insolvency, reorganization or compromise of debts or other similar laws; or (iv) seeking to appoint a receiver, trustee, agent, custodian or other similar official for it or for all or part of its assets or property.
12.4 Suspension. Notwithstanding Section 12.2, if, in IGLOO’s reasonable opinion, the nature of the breach contemplated by the notice under Section 12.2 presents a material risk to IGLOO or the System, IGLOO reserves the right to immediately suspend Customer’s access to the Services until such breach is corrected. Customer agrees that IGLOO shall not be liable to Customer for any action IGLOO takes to remove or restrict access to any Customer Data that violates any of the terms of this Agreement.
12.5 Termination of Accounts. Customer acknowledges and agrees that IGLOO reserves the right to suspend or terminate, with or without notice to Customer, the Account of any Named User that is, or IGLOO reasonably believes is, in material violation of any terms of this Agreement applicable to Named User.
12.6 Changes or Discontinuance of a Service. IGLOO may change or terminate features (for example, blogs, calendars, file sharing, tasks and wikis) or functionality of a Service in its sole discretion at any time.
12.7 Effect of Termination. Upon the termination, expiration or non-renewal of this Agreement and unless Customer enters into a subsequent agreement with IGLOO for the continued provision of Services: (i) Customer’s rights to use the Services shall be terminated and Customer shall immediately cease use of the Hosted Service; (ii) each of the parties shall deliver or destroy all Confidential Information of the other party which is in its possession, care or control; (iii) all Customer Data shall be promptly irretrievably deleted from the Hosted Service and the System by IGLOO; and (iv) any terms and conditions of this Agreement, which by their nature extend beyond the termination or expiry of this Agreement, shall survive the termination or expiry of this Agreement, including Sections 1, 2.3(d), 3.3, 3.6, 3.7, 6.2, 7, 8.2, 9.2, 10, 11, and 12.
13.1 Entire Agreement and Amendments. This Agreement, including all other documents incorporated herein by reference, constitutes the complete and exclusive agreement between the parties with respect to the subject matter hereof, and supersedes and replaces any and all prior or contemporaneous discussions, negotiations, understandings, representations and agreements, written or oral, regarding such subject matter. The terms and conditions of any agreements (including purchase orders) supplied by Customer shall not be applicable even if IGLOO has purportedly accepted the same, unless accepted in writing by an authorized officer of IGLOO. Except where expressly stated otherwise in this Agreement, all amendments to this Agreement must be made in a writing executed by an authorized representative of each party to be effective.
13.2 Severability. In the event that any provision of this Agreement is determined to be unenforceable or invalid under any applicable law or by applicable court decision, such unenforceability or invalidity shall not render this Agreement unenforceable or invalid as a whole, and, in such event, such provision shall be changed and interpreted so as to best accomplish the objectives of such provision within the limits of applicable law or applicable court decisions.
13.3 Waiver. The waiver by either party of a breach of any provisions contained herein shall be in writing and shall in no way be construed as a waiver of any other breach or of any succeeding breach of such provision or the waiver of the provision itself.
13.4 Assignment. Customer may not assign this Agreement. IGLOO may, without consent of Customer, assign this Agreement as part of a merger, corporate reorganization or similar transaction. The parties agree that a change of control of either party shall not be deemed to be an assignment of this Agreement by that party. This Agreement will be binding on and inure to the benefit of the parties and their respective successors and permitted assigns.
13.5 Independent Contractors. IGLOO and Customer are independent contractors and this Agreement will not establish any relations of partnership, joint venture, employment, franchise or agency between the parties. Neither party will have the power to bind the other or incur obligations on the other’s behalf without the other’s prior written consent, except as otherwise expressly provided in this Agreement.
13.6 Force Majeure. Time for performance shall automatically be extended by that period by which one party is prevented from meeting its obligations by any cause beyond its reasonable control (“Force Majeure Event”). Each party will use commercially reasonable efforts to prevent or avoid any event, condition or circumstance that would result in such Force Majeure Event. Failing prevention of the occurrence of such Force Majeure Event by the use of such efforts, the party unable to perform as a result of such Force Majeure Event will: (i) notify the other party immediately; and (ii) use commercially reasonable efforts to recommence performance of its obligations under this Agreement whenever possible, including through the use of alternate sources, workaround plans, implementation of a disaster recovery plan or other means.
13.7 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the State of New York, without reference to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods (also called the Vienna Convention) will not apply to this Agreement or the transactions contemplated by this Agreement.
13.8 Jurisdiction of Disputes. Each of Customer and IGLOO agrees to the exclusive jurisdiction of the courts of the State of New York for the conduct of any legal proceedings under, or related to, this Agreement.
13.9 Injunctive Relief. Nothing in this Agreement shall prevent either party from applying to a court of competent jurisdiction for injunctive or other equitable relief in the case of an infringement of IP Rights or the breach of an obligation of confidentiality, to preserve or protect real or tangible property from continuing damage or risk of same or to preserve a legal right for which the applicable limitation period is about to expire.
13.10 Language. The parties hereto have expressly required that this Agreement be drawn in the English language. C’est la volonté expresse des parties que la présente convention ainsi que les documents que s’y rattachent soient rédigés en Anglais.
13.11 Limitation Period. No action, regardless of form, arising from this Agreement or any Services provided or to be provided hereunder may be brought by either party more than one year after the cause of action has accrued.
13.12 Titles. The Section titles in the Agreement are solely used for convenience of the parties and have no legal or contractual significance.
13.13 Authority. Each party represents and warrants that: (i) it is a corporation validly subsisting under the laws of the jurisdiction in which it is incorporated; (ii) it possesses full power and authority to enter into this Agreement and to perform its obligations hereunder; (iii) its performance of the terms of this Agreement will not breach any separate agreement by which such party is bound; and (iv) it shall at all times comply with applicable laws.
13.14 Legal Compliance. The Hosted Service and Documentation and other IGLOO Property are subject to the export control laws of various countries, including Canada. Customer agrees that it will not submit the Hosted Service, Documentation or other IGLOO Property to any government agency for licensing consideration or other regulatory approval without the prior written consent of an authorized representative of IGLOO, and that it will not export the Hosted Service, Documentation and IGLOO Property to countries or Persons prohibited by such laws. Customer shall also be responsible for complying with all applicable governmental regulations of the country where Customer is registered and any foreign countries with respect to the use of the Hosted Service, Documentation or other IGLOO Property by Customer and its Named Users.
13.15 United States Government End Use. Where applicable, IGLOO provides the Services, including related software and technology, for ultimate United States federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with IGLOO to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
13.16 Notices. Any notice or other significant communication given to either party pursuant to this Agreement shall be in writing sent by email.