This is a binding agreement (hereinafter referred to as the “Agreement”) between kCentric USA Inc., 15 British American Blvd., Latham, NY 12110, (hereinafter named “k-ecommerce”) and the CUSTOMER named on the Proposal and k-ecommerce invoices (hereinafter named “CUSTOMER”).
WHEREAS k-ecommerce and/or its licensors have developed, own and market proprietary, Web-based solutions designed to enable website management, electronic commerce and electronic payments.
WHEREAS k-ecommerce offers web site hosting services on the Internet in relation to these solutions.
WHEREAS CUSTOMER wishes to make use of the solutions and retain the web site hosting services of k-ecommerce.
WHEREAS the parties wish to enter into a services agreement and to describe their agreement in writing.
NOW for good and valuable considerations, the Parties agree as follows:
Article 1. DEFINITIONS
- Section 1.01
- “Confidential Information” has the meaning ascribed to it in Section 17.01.
- Section 1.02
- “CUSTOMER Content” means any and all material developed, purchased, or otherwise acquired by CUSTOMER that is published, made available or otherwise used on CUSTOMER’s Web Site. CUSTOMER Content includes, but is not limited to, end user data collected by CUSTOMER, and information regarding merchandise or services sold by CUSTOMER through its Web Site; such end user data includes Personal Information.
- Section 1.03
- “CUSTOMER Marks” has the meaning ascribed to it in Section 7.01.
- Section 1.04
- “CUSTOMER Web Site” means CUSTOMER’s Internet presence, identified by the domain name provided by CUSTOMER and owned by CUSTOMER.
- Section 1.05
- “Hosting” means providing storage for the Software, and the complete or partial content of CUSTOMER’s Web Site to make it available for end-users to access on the Internet.
- Section 1.06
- “k-ecommerce Content” means any and all material developed by k-ecommerce and/or its licensors and made available for use by CUSTOMER, including any designing of CUSTOMER’s Web Site.
- Section 1.07
- “k-ecommerce Marks” has the meaning ascribed to it in Section 7.02.
- Section 1.08
- “k-ecommerce Solution” has the meaning ascribed to it in Article II.
- Section 1.09
- “Personal Information” means any information allowing to identify a physical person.
- Section 1.10
- “Proposal” means the k-ecommerce written proposal that has been agreed to by CUSTOMER.
- Section 1.11
- “Recovery Purpose” has the meaning ascribed to it in Section 17.05.
- Section 1.12
- “Remediation Expenses” has the meaning ascribed to it in Section 9.04.
- Section 1.13
- “Security Incident” has the meaning ascribed to it in Section 9.03.
- Section 1.14
- “Security Program” has the meaning ascribed to it in Section 9.02.
- Section 1.15
- “Software” means the ecommerce software, also called “k-ecommerce”, current release version, including any updates, new versions and upgrades provided by k-ecommerce and/or its licensors
- Section 1.16
- “Spam” has the meaning ascribed to it in Section 8.01.
- Section 1.17
- “Wind Down Period” has the meaning ascribed to it in Article III.
Article II. k-ecommerce OBLIGATIONS
- Section 2.01
- k-ecommerce agrees to provide CUSTOMER with the hosted solution(s), including storage for the Software and CUSTOMER Content, described in the Proposal (as a whole, the “k-ecommerce Solution”).
- Section 2.02
- Subject to the provisions found in Article XIV and Article XV, k-ecommerce guarantees that the network will be available 99.95% of the time in a given month in consideration for the fees indicated in Article IV.
- Section 2.03
- If an availability of less than 99.95% of the services described above were offered during a given month, then upon written request from Customer, Customer will receive a credit equal to one day of the monthly fee that Customer must pay for the service(s) (pro-rated) for any 60-minute period (on a cumulative basis, per location) below 99.95% availability. This credit will be applicable to the next invoice, up to a maximum equivalent to 10 credit days per 1-month period. This credit will apply specifically to the affected part of the relevant service. Any compensation as mentioned in the preceding paragraph is conditional on Customer notifying k-ecommerce of any problem affecting the services as soon as Customer becomes aware of it and such compensation is subject to the exceptions mentioned in Article XIV hereof.
- Section 2.04
- Downtime resulting from a maintenance event planned and carried out by k-ecommerce with a view to update and / or maintain Customer Web Site or the Software shall not be considered for the purpose of calculating availability.
- Section 2.05
- k-ecommerce may retain the services of subcontractors of its choice to provide Customer with the services described herein. Such subcontractors shall be bound in writing by adequate confidentiality obligations.
- Section 2.06
- k-ecommerce shall comply with the laws applicable to it, as well as with PCI (Payment Card Industry) regulations.
Article III. TERM AND TERMINATION
- Section 3.01
- The term of this Agreement shall be of twelve (12) months, shall begin on the date of its signature or electronic acknowledgment, and shall be renewed on its anniversary date and continue on a yearly basis. Each party may terminate for convenience this Agreement at any time, upon a ninety (90) days notice in writing by email, registered mail or by fax to the other party, with proof of reception in all cases, and provided that Customer shall not be entitled to a pro-rated refund of prepaid fees.
- Section 3.02
- Each party may prevent the renewal of this Agreement, by notifying the other party in writing at least thirty (30) days prior to the anniversary/renewal date of this Agreement.
- Section 3.03
- A party wishing to terminate or to prevent the renewal of this Agreement must send a notice in writing by email, registered mail or by fax to the other party, with proof of reception in all cases.
- Section 3.04
- Prior to the date when this Agreement should end, may such end be caused by this termination of the Agreement, by a party’s notice of non-renewal, or by a joint agreement between the parties to terminate the Agreement, Customer may request that k-ecommerce provide transition assistance to Customer for the purpose of accessing and retrieving Customer’s data from the k-ecommerce Solution, for up to 180 days after termination, and subject to payment of all applicable fees (as contemplated in Article IV) during the transition period by Customer (the “Wind Down Period”).
Article IV. FEES
- Section 4.01
- Standard Solution Fees. In consideration of the Hosting services and the use of the k-ecommerce Solution, as well as in consideration for support and maintenance services relevant to the k-ecommerce Solution, Customer will pay to k-ecommerce all fees specified in the Proposal or otherwise agreed in writing, as well as all applicable sales taxes.
- Section 4.02
- Customer Systems – Extra Support fees. As part of the solution can run on Customer’s site (through a link to Customer’s ERP, or accounting solution), and as k-ecommerce has no control over Customer’s systems, k-ecommerce can charge its then applicable hourly rate for each support call about a problem related to Customer’s systems.
- Section 4.03
- Custom Services or Interventions. While the normal use by Customer of the k-ecommerce Solution (including Hosting, maintenance and support) is provided based on fixed one-time and recurring subscription fees, professional services requested by Customer for custom requirements or other interventions (above and beyond the standard solution) are provided based on the time actually spent by k-ecommerce at its then applicable hourly rate.
- Section 4.04
- Change in Fees. k-ecommerce may change fees upon sixty (60) days’ notice to Customer by postal mail or electronic mail. Any fees change cannot exceed an annual increase of twenty (20) percent. Upon such notice, Customer can refuse fees changes by notifying k-ecommerce in writing, by email, or registered mail, with proof of reception in all cases, that it does not agree to such fees change and wishes to terminate this Agreement, which termination shall occur concurrently with the price change taking effect. No answer from Customer within the above-mentioned notification delay is considered as acceptance of the fees change.
- Section 4.05
- Invoicing and Payment. k-ecommerce will invoice Customer for fees related to the use of the k-ecommerce Solution, to hosting services and to support fees as per the terms in the signed contract. If a payment is returned or rejected by k-ecommerce’s bank, or incurs additional costs for k-ecommerce (e.g., bank fees) for any reason, then Customer shall pay a service fee of $50 and reimburse all such fees and costs incurred by k-ecommerce, in addition to amounts due, and Customer shall be immediately deemed to be in default under this Agreement. Customers with accounts where an invoice remains not paid in full 30 days after k-ecommerce submits such invoice may have their service interrupted or terminated without notice, but any such interruption does not relieve Customer from the obligation to pay all fees due to k-ecommerce, including the monthly account charge. Accounts and all amounts in default are subject to an overdue payment charge of 1% per month, or 12% per year, until fully paid. If Customer defaults, Customer agrees to pay k-ecommerce its reasonable expenses, including attorney and collection agency fees, incurred in enforcing its rights.
- Section 4.06
- Taxes. All fees charged by k-ecommerce for the k-ecommerce Solution and the Hosting services are exclusive of all taxes. The Customer must pay any sales tax that applies to the k-ecommerce Solution or the Hosting services.
- Section 4.07
- Data and Bandwidth. k-ecommerce provides Customer with “unlimited” bandwidth and disk space regarding the use of the k-ecommerce Solution only. However, if Customer uses more than 500GB of bandwidth per month, or more than 100GB of data storage, additional fees may apply. Additional charges may also apply if Customer stores data which is unrelated to the k-ecommerce Solution on k-ecommerce servers.
Article V. MODIFICATIONS
- Section 5.01
- k-ecommerce may change, add to, or remove the terms of this Agreement at any time. k-ecommerce will notify Customer of changes by sending an email or by posting a revised version of this Agreement incorporating the changes to its website. Upon such notice, Customer shall have sixty (60) calendar days to notify k-ecommerce by email or registered mail with proof of reception in all cases, that it does not agree to such amendment and wishes to terminate this Agreement, in which case Customer shall be entitled to a pro-rated refund of fees paid in advance. No answer from Customer or continued use of the services after the above-mentioned notification delay is considered as acceptance of the revised terms.
Article VI. SUBLICENSE
- Section 6.01
- The k-ecommerce Solution, including Software and Hosting services, is to be used for Customer’s benefit only. Customer may not sublicense or resell any Software or Hosting services to any third party. Customer may not alienate, transfer and/or grant to any person or entity, all or part of their rights, duties or obligations under the present Agreement. Any attempts to do so would be considered a material breach and grounds for termination of this Agreement.
- Section 6.02
- Should such case arise, Customer must pay to k-ecommerce, as compensation, an amount equal to Customer’s current monthly fee multiplied by the number of months this Agreement has been in effect in total, including renewals; this shall not exclude or limit any other legal claim by k-ecommerce.
Article VII. USE OF CUSTOMER NAME AND TRADEMARKS
- Section 7.01
- k-ecommerce as well as its parent and affiliated companies, may mention Customer’s name and trademarks (collectively, “Customer Marks”) as a client of k-ecommerce (a) on k-ecommerce’s own web site, and (b) in printed and online advertising, publicity, directories, newsletters, and updates describing k-ecommerce’s services. k-ecommerce will notify Customer prior to using Customer’s name.
- Section 7.02
- Customer may use k-ecommerce’s trade name, trademarks, and service marks (collectively, “k-ecommerce Marks”) in advertising and publicity in conjunction with the offering of Customer Content via k-ecommerce, provided that Customer shall submit copy to k-ecommerce for its prior written approval, and provided further that under no circumstances shall such use imply that k-ecommerce endorses, sponsors, certifies, approves or is responsible for Customer Content.
- Section 7.03
- k-ecommerce pricing is established considering an authorization to use Customer Marks to mention Customer as a client of k-ecommerce. Should Customer not wish for k-ecommerce and its parent and affiliated companies to use Customer’s name, Customer shall notify k-ecommerce in writing of such decision and an additional monthly fee will be charged (based upon request).
- Section 7.04
- Each party shall abide by the other party’s labeling guide and rules.
Article VIII. ACCEPTABLE USE POLICIES (AUP)
- Section 8.01
- Email policy. Within the k-ecommerce Solution, there are features allowing Customer to send emails. k-ecommerce has a Zero Tolerance Spam Policy with regards to any correspondence sent by using the k-ecommerce Solution. “Spam” shall be interpreted, for the purpose of this agreement, as the sending of unsolicited email. Customer shall indemnify and save harmless k-ecommerce against any amount which k-ecommerce should have to pay because of the violation by Customer of any anti-spam legislation.
- Section 8.02
- Adult or law prohibited content. No adult or pornographic content or content prohibited by law should be copied on k-ecommerce servers.
- Section 8.03
- Best practices. Customer shall abide by the principles and obligations described in Article 16 within its relations with its own clients, contacts and visitors who interact with Customer by using the k-ecommerce Solution.
- Section 8.04
- Client shall comply with the laws applicable to it, including any applicable privacy laws, and shall follow best practices if and when handling credit card information themselves.
- Section 8.05
- In case of non-respect of the AUP. Should Customer violate this AUP section k-ecommerce shall have the right to terminate this Agreement and charge termination fees, which Customer shall pay upon request. The termination fees shall be an amount equivalent to twelve (12) months of the fees provided for in Article IV.
Article IX. SECURITY
- Section 9.01
- Customer acknowledges that the Internet is not a secure environment, and that the purpose of the Hosting services is to allow end users easy access to Customer’s Content. k-ecommerce will take those precautions k-ecommerce deems reasonable in its sole discretion to implement industry best practices to secure Customer’s Web Site from attack, but k-ecommerce makes no warranty that there will be no outages or interruptions of service, or that Customer Content will be secure against attack of any form by end users or other third parties. k-ecommerce cannot be held liable for any damages suffered by Customer pursuant to such attack or attacks. k-ecommerce shall notify Customer of any breach of security concerning the Personal Information of Customer’s clients.
- Section 9.02
- k-ecommerce’s hosting and/or processing of Customer’s Content and end-users personal data will only occur within, and comply with, k-ecommerce technical and organizational security measures that comply with industry best practices and applicable laws (a “Security Program”). The purpose of the Security Program is to preserve the confidentiality, integrity, availability and overall security of Customer Content and end-user personal data in k-ecommerce’s possession or control or which it has the ability to access or impact, while maintaining easy access for Customer and its users. k-ecommerce’s Security Program shall provide the same or better security protections it applies to its own data of similar nature, but in no event may those protections be anything less than that required to comply with applicable laws.
- Section 9.03
- If k-ecommerce becomes aware of any unlawful or unauthorized access to or disclosure of any Customer Content or end-users personal data, or any unauthorized or unlawful access to databases containing Customer Content or end-users personal data (each, a “Security Incident”), k-ecommerce will promptly notify Customer of the Security Incident within forty eight (48) hours of its discovery, including a summary of the Security Incident, extent of impact on the security of Customer Content or end-users personal data, cause of the Security Incident and steps being taken to mitigate the Security Incident. For further clarification, a Security Incident must result from unauthorized or unlawful access to or disclosure of Customer Content or end-users personal data through k-ecommerce’s databases. k-ecommerce will cooperate with Customer in investigating and handling such matter and take steps consistent with industry best practices to mitigate the effects and to minimize any damage resulting from the Security Incident.
- Section 9.04
Should a violation of this Agreement by k-ecommerce have led to the Security Incident, k-ecommerce will be responsible for all Remediation Expenses (defined below) associated with a Security Incident involving end-users personal data on k-ecommerce’s, databases or otherwise within k-ecommerce’s and/or their subcontractor’s or licensor’s possession, custody or control, except to the extent caused by the negligence or willful misconduct of Customer. “Remediation Expenses” shall include:
- The costs of any legally required notice of the Security Incident to affected individuals or to governmental authorities.
- Only in the event a notice is legally required, the costs of any protective measures Customer is legally required to offer to impacted individuals (such as up to twenty-four (24) months of identity theft protection or credit monitoring).
- The reasonable and necessary costs of any investigation of the Security Incident and of remedying any vulnerabilities or deficiencies in the k-ecommerce’s systems that are discovered as a result of such investigation.
- If applicable, the costs of any other fines, assessments or penalties imposed by a governmental authority.
Article X. CUSTOMER CONTENT
- Section 10.01
- Ownership of Content. Customer acknowledges and agrees that (a) unless expressly stated elsewhere, neither k-ecommerce nor its licensors have any proprietary, financial, or other interest in Customer Content; (b) k-ecommerce does not, by virtue of offering or hosting Customer Content, edit, distribute, market, sublicense, publish, or otherwise provide Customer Content to end users; and (c) Customer is solely responsible for the information, data, graphics, text, quality, performance, and all other aspects of its Content. Customer warrants that it owns or has the right to use and offer the Content, including any Personal Information, in connection with Customer Marks in the manner in which such Content is offered and will be offered by Customer during the term of this Agreement.
- Section 10.02
- Protection of Content. Customer acknowledges and agrees that Customer is solely responsible for ensuring the integrity of its Content. Although k-ecommerce provides data backup services, Customer is advised that k-ecommerce in no way is responsible for any damages resulting from the loss of Customer Content, regardless of the reason for such loss. Customer is solely responsible for backing-up/archiving Customer’s Content.
Article XI. k-ecommerce CONTENT
- Section 11.01
- Upon payment of any fees charged for the development of k-ecommerce Content, and subject to Customer’s compliance with its obligations stated herein, k-ecommerce hereby provides Customer with a non-exclusive, royalty-free, unassignable license to use k-ecommerce Content only as part of Customer Web Site, and within this Agreement.
- Section 11.02
- Customer agrees to maintain a hyperlink to “https://www.k-ecommerce.com” at the bottom of each page of Customer’s web pages powered and hosted by k-ecommerce. k-ecommerce’s pricing is established taking into account the maintenance of such hyperlink. Should Customer not wish to maintain such hyperlink, Customer shall notify k-ecommerce in writing of such decision, and an additional monthly fee will be charged (based upon request).
- Section 11.03
- k-ecommerce and/or its licensors own the intellectual property of the k-ecommerce Solution. However, Customer can request k-ecommerce to sign an agreement in order for the k-ecommerce source codes to be deposited in trust with a k-ecommerce certified escrow agent. Customer will pay all fees associated to the escrow, including those of k-ecommerce (amounts are available upon request). If Customer has requested the escrow and paid all of the applicable fees, Customer hereby receives a license to use such sources codes, effective upon the condition that Customer has obtained the right to use such source codes as provided by this Agreement and the applicable escrow agreement.
- Section 11.04
- Customer can also purchase a perpetual license to use the object code of the k-ecommerce Solution, for an amount equivalent to ten per cent (10%) of the Manufacturers Suggested Retail Price for such a license, taking into account the scope of Customer’s use within this Agreement. Customer wishing to make such a purchase must execute the k-ecommerce End-User License Agreement. Such purchase does not have as an effect the termination of this Agreement, which shall continue as if no such purchase had taken place. Furthermore, such purchase of an object code software license for the k-ecommerce Solution does not include support and/or maintenance services for such software; this Agreement must remain in force for Customer to benefit from the support and maintenance services which are included herein. Updates to the k-ecommerce Solution are included only as long as this Agreement remains in force.
Article XII. REPRESENTATIONS
- Section 12.01
k-ecommerce states the following representations:
- The Software is protected by the legislation on copyright;
- The Software and any copies authorized by k-ecommerce are the intellectual property of k-ecommerce and/or its licensors. The structure, organization and source code of the Software are valuable trade secrets and confidential information of k-ecommerce and/or its licensors; and
- As of the date of acceptance of this agreement, k-ecommerce is not aware of any claim or dispute involving their respective intellectual property.
- Section 12.02
Furthermore, k-ecommerce warrants that it has the right to grant this license to use the Software as contemplated hereunder. Subject to the limitations of Article XV, k-ecommerce will indemnify Customer and hold Customer harmless against any damages awarded in a final judgement against Customer, arising out of any claim, by a third party, that the Software infringes or violates any copyright, trademark or trade secret rights of such third party, in Canada or the United States, provided that:
- Customer notifies k-ecommerce promptly in writing of any notice of any such claim;
- Customer cooperates with k-ecommerce in all reasonable respects in connection with the investigation and defense of any such claim;
- Customer has not prejudiced k-ecommerce’s position in any way, by, without limiting the generality of the foregoing, its admissions and/or declarations; and
- k-ecommerce has and retains at all times sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise.
- Section 12.03
Should the Software become, or in k-ecommerce’s opinion be likely to become, the subject of a claim of copyright, patent or trademark infringement or trade secret misappropriation, in Canada or the United States, Customer will permit k-ecommerce, at k-ecommerce’s option and expense, either to:
- Procure for Customer the right to continue using the Software;
- Replace or modify the same so that it becomes non-infringing; or
- Terminate this agreement and refund fees paid by Customer for services that were not obtained.
- Section 12.04
Notwithstanding anything herein to the contrary, however, k-ecommerce shall have no obligation or liability to Customer under any provision of this Article XII if any copyright, patent or trademark infringement or trade secret misappropriation claim is based upon:
- The combination, operation or use of any Software with any programs, software or equipment not provided by k-ecommerce, if the infringement would have been avoided by the combination, operation or use of Software with other programs, software or equipment;
- The use of the Software other than in the operating environment specified for it by k-ecommerce if the infringement would have been avoided by use in the operating environment specified by k-ecommerce;
- The use of or access to the Software in a manner other than that for which it was furnished by k-ecommerce; or
- The use of any Software which has been modified by or for Customer in such a way as to cause it to become infringing.
Article XIII. CUSTOMER INDEMNIFICATION
- Section 13.01
Customer shall indemnify and hold harmless k-ecommerce and/or its licensors from and against any and all claims, demands, actions, causes of action, suits, proceedings, losses, damages, costs, and expenses, including reasonable attorney’s fees, arising from or relating to any claim or allegation, by a third party, that Customer’s provision, or an end user’s use, of Customer’s Content, or any act, error, or omission of Customer in connection therewith, including but not limited to matters relating to incorrect, incomplete, or misleading information; libel; invasion of privacy; illegal use of Personal Information; violation(s) of the principles and obligations stated in Article XVI; infringement of a copyright, trade name, trademark, service mark, or other intellectual property or other right; or violation of any applicable law provided that:
- k-ecommerce notifies Customer promptly in writing of any notice of any such claim;
- k-ecommerce cooperates with Customer in all reasonable respects in connection with the investigation and defense of any such claim;
- k-ecommerce has not prejudiced Customer’s position in any way, by, without limiting the generality of the foregoing, its admissions and/or declarations; and
- Customer has and retains at all times sole control of the defense of any action on any such claim and all negotiations for its settlement or compromise.
Article XIV. WARRANTIES
- Section 14.01
- k-ecommerce warrants that the Software shall materially function as described in its documentation, for the duration of this Agreement. Should the Software not materially function as described in its documentation, k-ecommerce shall use commercially reasonable efforts to correct such problem within a reasonable delay.
- Section 14.02
- k-ecommerce warrants that services will be delivered in a professional manner by personnel or agents skilled in delivering such services, and that the result of any custom development or design services shall comply with the specifications agreed by k-ecommerce and Customer.
- Section 14.03
- The warranties are made in lieu of any and all other warranties, legal, express or implied, including without limitation, any warranties of merchantability, fitness for a particular purpose, or against latent defects. k-ecommerce and its licensors offers no further warranty and any other explicit, implicit or legal warranty is hereby excluded.
- Section 14.04
If a malfunction is due to:
- The action or inaction of Customer or a third party not affiliated with k-ecommerce;
- A failure of Customer’s or any third party’s equipment;
- Third party software problems;
Such malfunction shall not be covered by the warranty and k-ecommerce may invoice its time spent in solving such problems and correcting such malfunctions.
Article XV. LIMITATION OF LIABILITY
- Section 15.01
- k-ecommerce and its licensors assume no responsibility with respect to Customers or end user’s use of the Software or Hosting and shall not be liable for indirect, consequential, incidental, and special damages, including but not limited to loss of use, business interruptions, and loss of profits, or any indirect, incidental, consequential, punitive or exemplary damages, even if k-ecommerce is aware of the possibility thereof. In no event shall the total liability of k-ecommerce and its licensors to Customer exceed the value of the services for the period of twelve (12) months preceding the claim. Customer expressly releases k-ecommerce and its licensors, and k-ecommerce and its licensors expressly disclaim all liability beyond this limit. Any reimbursement or compensation is conditional upon Customer notifying k-ecommerce of any failure as soon as Customer is aware of such failure.
Article XVI. BEST PRACTICES CONCERNING PERSONAL INFORMATION.
- Section 16.01
In order to respect applicable law concerning Personal Information, including the European General Data Processing Regulation (GDPR) when applicable, as well as to implement best practices in the operation of the business relationship covered by this Agreement:
- k-ecommerce shall act as provided within its policy concerning Personal Information and the GDPR published on the k-ecommerce website;
- Customer agrees, in the collection and processing of Personal Information, to comply with the GDPR and shall abide, even with its clients which are not located in the European territory, by the following principles:
- Customer shall require from its clients only the Personal Information which is needed for the specific business between Customer and its clients;
- Customer shall obtain affirmative, express consent from its clients for the use and access of Personal Information by Customer, k-ecommerce, as well as third parties involved in providing Customer with the services contemplated;
- Subject to applicable local law, Customer shall completely erase the Personal Information of a client upon such client’s request;
- Customer shall allow its client, upon its client’s request, to receive and reuse the Personal Information provided to Customer by such client. Such data shall be provided to the client in a structured and easy to read format;
- Customer shall allow its clients to opt out of any automatic decision-making process concerning such clients, including, without limiting the foregoing, a process of profiling by using Personal Information.
- Customer shall name a person responsible for the adequate processing of Personal Information (DPO or Data Protection Officer); such person shall maintain a log of all processing of Personal Information performed by Customer;
- Customer shall have signed a written agreement, including adequate confidentiality clauses, with any subcontractor who will have access to its clients’ Personal Information.
- Customer and the DPO shall plan and take into account the impact on its clients of any processing of Personal Information by Customer;
- Customer shall notify its clients of any breach of security concerning the Personal Information of its clients.
- Customer shall ensure that, should Personal Information be sent to another company or country, the data is protected at least as well as provided herein.
- how Personal Information shall be processed by Customer and for which purpose(s);
- the name and coordinates of the DPO;
- what persons and corporate bodies outside Customer’s organization will receive the Personal Information; and
- to which countries the Personal Information may be sent by Customer
Article XVII. CONFIDENTIALITY
- Section 17.01
- Definition of Confidential Information. “Confidential Information” shall mean information not generally known to third parties and which is proprietary to the party disclosing the information including, without limitation, any trade secrets, intellectual property rights or proprietary business information of any sort, and any business plan, technical, marketing, production, financial, and engineering matters, and any information regarding Customer’s clients, suppliers, contracts, finances, pricing, personnel, research, plans, policies, inventions, strategies, operational methods, projections, cost information, concepts, or other information or processes. Confidential Information of either party shall not include information that (i) is or becomes part of the public domain other than as a result of disclosure by the party receiving the Confidential Information; (ii) becomes available to the party receiving the Confidential Information on a non-confidential basis from a source other than the party disclosing the Confidential Information, provided that source is not bound with respect to that information by a confidentiality agreement with the party disclosing the Confidential Information or is not otherwise prohibited from transmitting that information by a contractual, legal or other obligation; (iii) was in the possession of the party receiving the Confidential Information prior to disclosure of the same by the party disclosing the Confidential Information; or (iv) has been independently developed by the party receiving the Confidential Information without use of Confidential Information.
- Section 17.02
- No Use of Confidential Information. The party receiving the Confidential Information agrees not to use the Confidential Information other than for the purpose of this Agreement. k-ecommerce may disclose to its licensors the Confidential Information which is necessary for k-ecommerce and its licensors to be able to serve Customer as provided in this Agreement.
- Section 17.03
- Ownership of Confidential Information. All Confidential Information shall be and remain the property of the party disclosing the Confidential Information.
- Section 17.04
- Confidentiality Term. The obligations of k-ecommerce and Customer as the party receiving Confidential Information under this Agreement shall survive the termination of this Agreement.
- Section 17.05
- Return of Confidential Information. Immediately upon the termination of the Wind Down Period or sooner if so requested, the party receiving the Confidential Information agrees to return to the party disclosing the Confidential Information or destroy (at the option of the party receiving the Confidential Information), all documents and other materials (and all copies thereof) provided by the party disclosing the Confidential Information or its representatives, containing Confidential Information. Return or destruction of Confidential Information shall not minimize the obligation of the party receiving the Confidential Information to protect and maintain the Confidential Information as provided for herein. Notwithstanding the above, should any electronic records containing Confidential Information be retained by the party receiving the Confidential Information for the purposes of backup, recovery, contingency planning, archiving, record keeping or business continuity planning (any such purpose, a “Recovery Purpose”) or be otherwise not accessible in the ordinary course of business, such records, to the extent not otherwise permanently deleted or overwritten in the ordinary course of business, may be retained by the party receiving the Confidential Information but shall not be accessed except as required for any Recovery Purpose.
- Section 17.06
- Compelled Disclosure. In the event that the party receiving the Confidential Information is required by judicial or administrative process to disclose any Confidential Information, the party receiving the Confidential Information shall promptly notify, if possible in the circumstances, the party disclosing the Confidential Information of such request or requirement so that the party disclosing the Confidential Information may seek an appropriate protective order or other relief. If it is not possible to notify the party disclosing the Confidential Information prior to disclosure, the party receiving the Confidential Information shall notify the other party as soon as possible of any such disclosure.
Article XVIII. MISCELLANEOUS
- Section 18.01
- Customer agrees that it shall not use the Software to assist in the development or design of a computer program that is intended to provide substantially similar functionality as the Software. The Software shall not be used to develop, nor shall Customer market, any conversion utility or aid specific to the Software enabling or facilitating users to convert from the Software or a database created by using the software to an alternative software or alternative database not marketed by k-ecommerce.
- Section 18.02
- Customer may contact k-ecommerce for support purposes. However, Customer shall use k-ecommerce’s support services reasonably, and in a professional manner. Without limiting the foregoing, Customer shall not require k-ecommerce to solve the same problem many times as Customer’s technical staff is expected to accumulate experience and knowledge in relation to k-ecommerce’s services.
- Section 18.03
- This Agreement shall in all respects be governed by and interpreted, construed and enforced in accordance with the laws applicable within the Province of Quebec in Canada.
- Section 18.04
Dispute Resolution Procedure
- Disputes arising out of or related to this Agreement shall be resolved in accordance with this provision.
- In the first instance the parties will attempt to resolve such disputes through open communication and dialogue. To this end, an executive of the concerned party will notify an executive of the other party of the nature of the dispute and explore the possibility of reaching an agreeable resolution, prior to initiating a Notice of Dispute.
- If the parties cannot resolve the matter by informal dialogue within 10 days from the first contact described above or there is a reason to give notice immediately, either party may give a Notice of Dispute to the other party. The Notice of Dispute shall state the nature of the dispute and the corrective action necessary to remedy the dispute.
- After the Notice of Dispute, the parties shall first attempt to resolve any disputes by mediation. The parties shall agree on a single mediator who has knowledge of computer systems and Information Technology Law. Mediation shall be conducted in a site to be agreed by the parties in Montreal (Quebec) Canada. Each party shall pay its own attorneys’ fees and the costs of mediation shall be split equally between the parties.
- If the dispute has not been resolved by mediation within 30 days after the Notice of Dispute, or the parties are unable to agree to a mediator, within 10 days after the Notice of Dispute, then, the dispute shall be resolved by binding arbitration in accordance with the pertinent rules of Quebec, adapted if necessary so that only one arbitrator hears the case, and judgment upon the award rendered by the arbitrator may be enforced in any court of competent jurisdiction. The parties shall agree on an arbitrator(s) who shall have knowledge of computer systems and Information Technology Law. The arbitrator shall render a decision within 30 days of the arbitration hearing. Arbitration shall be conducted in conducted in a site to be agreed by the parties in Montreal (Quebec) Canada, and shall be held in the English language.
- Anything else in this Section 18.04 provision notwithstanding, if either party, at any time, believes that there is the need to maintain the status quo pending resolution, or if a party believes that there is a matter of urgency for the other party to perform of to cease performing a specific action, that party may seek an injunction or other equitable relief from a court of competent jurisdiction in Montreal (Quebec) Canada, as provided by applicable laws and this Agreement.
- Section 18.05
- Except for Customer’s obligations concerning confidentiality and non-competition, each party shall not be in default or otherwise liable for any delay in or failure of its performance as per this Agreement should the cause of such default be due to a case of force majeure. Are deemed to be force majeure any unpredictable and irresistible event and any foreign cause which presents the same characteristics, notably, without limiting the foregoing, the causes beyond k-ecommerce or its licensors’ control, fire, electrical failures, failures of a telecommunication network or part thereof, floods and other acts of God, accidents, labor disputes, extra-ordinary supplying difficulties, civil unrest, orders, regulations, laws and other governmental interventions, riots, civil or military interventions and act of war (declared or not).
- Section 18.06
- This Agreement sets forth the entire agreement and understanding between the parties regarding the software-as-a-service agreement contemplated herein and supersedes any prior representations, advertisements, statements, proposals, negotiations, discussions, understandings, or agreements regarding the same subject matter.
- Section 18.07
- The failure by either party at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, shall not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The express waiver of any default by either party shall not be deemed a continuing waiver but shall apply solely to the instance to which such waiver is directed.