1.0 License
1.1 Licenses. Benbria grants and Customer hereby accepts, upon payment by Customer of the fees specified in the Loop Order Form and subject to the terms and conditions contained herein, a limited, non-transferable, nonexclusive, and revocable license (the “License”) to use the Loop Customer Engagement software (the “Software”) as described in the Loop Order Form, and to access and use all material, information and technology offered as part of the Software including but not limited to documents, reports, software, graphics, text, images and logos, algorithms, processes, user interfaces, designs and know-how (the “Content”) solely for Customer to interact with its clients.
1.2 Subscription License Term. These terms will come into effect upon full execution of the Loop Order Form (the “Effective Date”) and, subject to the provisions contained in Section 1.3 below, will continue in full force and effect for the period specified in the Loop Order Form, (the “Initial Term”). The license and associated terms shall automatically renew for consecutive one (1) year periods (each a “Renewal Term”) until otherwise terminated pursuant to the provisions hereof or, at the option of either party, upon no less than sixty (60) days prior written notice before the expiration of the Initial Term or any Renewal Term thereof, unless otherwise specified in the Loop Order Form.
1.3 Evaluation License. If specified in the Loop Order Form, Benbria grants the Customer the right to license and use the Software for evaluation purposes only prior to commencing a full-use license as described in Section 1.1 above. The Customer’s right to use the Software during the evaluation period shall be in accordance with the specifications listed in the Loop Order Form.
1.4 Restrictions. Customer acknowledges that the Software and the Content, constitute valuable trade secrets of Benbria and its licensors. Except as otherwise set out herein, Customer shall not (i) copy or use the Software or the Content; (ii) alter, modify, duplicate, translate, de-compile, reverse engineer, or attempt to recreate the Software or the Content, in whole or in part; (iii) modify or create any derivative works from the Software or the Content any part thereof; (iv) merge the Software or the Content with any other software; (v) disclose to any third party any performance information or analysis relating to the Software and the Content; (vi) license, sublicense, sell, convey, assign, transfer, give, lend, rent, transfer, pledge as collateral, or otherwise grant any right to any of the Software or the Content or any of Customer’s rights hereunder, in whole or in part, voluntarily or involuntarily, by operation of law or otherwise, to any person, individual, legal or personal representative, partnership, company, corporation, syndicate, association, trust or governmental body otherwise; (vii) build an identical product to the Software or a product with similar ideas, features and functionality as the Software; and (viii) copy any ideas, features of functions of the Software. The Customer agrees to retain, on all copies of any Content the Customer downloads, all copyright and other proprietary notices contained in the Content. The Software and the Content are protected by Canadian and worldwide copyright laws and treaty provisions. Customer agrees to comply with all copyright laws worldwide in Customer’s use of the Software and the Content and to prevent any unauthorized copying of the Content. Except as expressly provided herein, Benbria does not grant any express or implied right or license to Customer under any intellectual property right, including under any patent, trade-mark, copyright, trade secret or confidential information of Benbria or its licensors.
2.0 Customer Data
2.1 Customer Data. In the course of using the Software, Customer may upload certain information, data and material, including online conversation and feedback threads involving Customers and Customer’s clients, through the Software (the “Customer Data”). Customer warrants that the Customer Data will (i) comply with all applicable laws; (ii) not contain infringing, obscene, threatening, libellous, or other illegal material; (iii) not include material containing software viruses, worms, Trojan horses or other harmful computer codes, files scripts or programs designed to interrupt, destroy, or limit the functionality of any computer software or hardware telecommunications equipment; and (iv) not contain any content, work, name, logo or mark that infringes any intellectual property right of any person. Customer acknowledges that Customer has obtained the consent to use any Personal Information (as that term is defined in the Personal Information Protection and Electronic Documents Act (S.C. 2000, c.5) (“PIPEDA”) and all other applicable privacy legislation) contained in the Customer Data from the person to whom the Personal Information pertains, and that Customer has complied with all relevant privacy laws in collecting, using and disclosing such Personal Information.
2.2 Ownership. Customer acknowledges that Customer owns the Customer Data and all intellectual property rights therein, and that Customer shall herein grant a license to Benbria to use such Customer Data. Customer will have sole responsibility for the accuracy, quality, integrity, reliability, appropriateness and intellectual property ownership and for obtaining the right to use all of the Customer Data submitted by Customer. Customer acknowledges that Benbria will have no responsibility for the accuracy of the Customer Data.
2.3 License. Customer agrees to grant Benbria and its third party service providers a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to use the Customer Data for the purposes of analyzing, aggregating and preparing reports from the Customer Data. Benbria will use the Customer Data in accordance with Benbria’s Privacy Policy.
3. 0 Fees
3.1 Fees – Evaluation Period. Customer shall be invoiced and shall pay Benbria the Evaluation fees set out in the Loop Order Form. The entire amount of Evaluation Fees shall be effective and billable thirty (30) days from the date of acceptance (customer signature) noted in the Loop Order Form. This fee is non-refundable. Benbria reserves the right to terminate Customer’s access to the Software if Customer fails to pay any fees when due or if Customer provides false or fraudulent billing or contact information.
3.2 Fees – Deployment Period. Customer shall be invoiced and shall pay Benbria the Deployment fees set out in the Loop Order Form. The Deployment fees shall be effective and billable thirty (30) days from the date of acceptance (customer signature) noted in the Loop Order Form. The monthly Deployment fees shall be billable twelve (12) months in advance. Benbria reserves the right to terminate Customer’s access to the Software if Customer fails to pay any fees when due or if Customer provides false or fraudulent billing or contact information.
3.3 Fee Increase. Benbria reserves the right to amend its fee schedule from time to time.
3.4 Taxes. All fees and other charges specified in the Loop Order Form are exclusive of all applicable harmonized sales taxes and any other taxes imposed or levied by any government or government agency, including sales or use taxes (the “Purchase Taxes”). Customer will pay all Purchase Taxes, other than taxes on Benbria’s net income, as a result of the transactions contemplated in the Loop Order Form.
4. 0 Customer Responsibilities
4.1 Account. Customer is responsible for all of the activity associated with Customer’s account and Customer agrees to notify Benbria immediately in the event of any unauthorized use of Customer’s account or password or if Customer suspects its account or password has been compromised in any way. Customer agrees not to misrepresent itself in order to gain access to the Software. Customer is responsible for advising Benbria of any change in Customer’s billing or contact information.
4.2 Acceptable Use Policy. Customer must at all times comply with the terms and conditions of Benbria’s Acceptable Use Policy which is set out at www.benbria.com/aup and is incorporated herein by reference. Customer will also ensure that Customer’s clients who use the Software will also comply with the Acceptable Use Policy. Benbria reserves the right to amend its Acceptable Use Policy and will provide Customer with fifteen (15) days notice of any such change. Customer’s continued use of the Software after modification of the Acceptable Use Policy constitutes Customer’s acceptance of such modifications.
4.3 Applicable Laws. Customer must abide by all applicable local, provincial, state and national laws and all relevant treaties and directives in Customer’s use of the Software.
4.4 Limiting Access. Customer shall not permit persons other than Customer’s authorized representatives to access the Software.
4.5 No Responsibility. Benbria accepts no responsibility and shall not be held liable for any delays, performance issues, stoppages, outages, increased costs or other similar events relating to the Software resulting from Customer’s failure to adhere to the provisions set out in this Section.
5. 0 Third Parties.
5.1 Third Party Links. The Software may contain hyperlinks to websites managed by third parties. These links are provided for convenience only. Benbria has no control over websites owned by third parties and Benbria makes no representation or warranty regarding, and does not endorse, any linked websites, the information appearing thereon or any of the products or Software described thereon, or the linked-party sources (including any viruses resulting from access through them), the quality of the products or Software offered, the security of performing transactions on those websites or the privacy policies on the websites in question. Links do not imply that Benbria sponsors, endorses, is affiliated or associated with, or is legally authorized to use any trade-mark, trade name, logo or copyright symbol displayed on or accessible through the links or that any linked website is authorized to use any trade-mark, trade name, logo or copyright symbol of Benbria. Benbria cannot be held liable for possible damages arising from Customer’s use of such third-party sites.
5.2 Content. The Software may from time to time contain materials, data or information provided, posted or offered by third parties. Customer agrees that Benbria will have no liability whatsoever to Customer for any such third party material, data or information.
6.0 Ownership
6.1 Ownership of Software. Benbria and its licensors own all right, title and interest in and to the Software and the Content, including without limitation, all copyrights, trade secrets, patents, and other intellectual property rights. Upon termination of the license unless otherwise provided herein, all of Customer’s rights in connection with the Software and the Content, including but not limited to the right to access and use the Software and the Content, will terminate.
6.2 Trademarks. The trade-marks, logos and company names of Benbria or any of its affiliates and licensors used as part of the Software and the Content may not be copied, imitated or used, in whole or in part, without the prior written consent of Benbria or any such affiliate or licensor. Other products, Software logos and company names mentioned as part of the Software and in the Content may be the trademarks of their respective owners.
6.3 Marketing Rights. (i) Customer grants Benbria a limited, non-transferable, worldwide license to use the Customer name, logo, usage results, loop data, testimonials, and supporting information about the deployment of Software marketing initiatives, including but not limited to case studies, website posts, presentations, tradeshows, promotional material, and press releases; ii) Benbria shall not use the trademarks or logos of the Customer without the prior written consent of the Customer, and such consent shall not be unreasonably withheld.
6.4 Proprietary Notices. Customer agrees not to alter, remove, deface or destroy any copyright, trade-mark or proprietary markings or confidential legends placed upon or contained in the Software and the Content or in or on any related material.
7.0 Warranties
7.1 Customer Warranties. Customer warranties are noted in Section 2.1 above.
7.2 Software. Benbria warrants that the Software are designed to and shall operate in substantial conformity with the specifications set out in the user documentation.
7.3 Content. The Content may contain inaccuracies and typographical errors. Benbria makes no representation or warranty regarding the accuracy or completeness of the Content or information accessible while using the Software, or the reliability of any advice, opinion, statement or other information displayed or distributed through the Software. Customer acknowledges that any reliance on any of the foregoing and Customer’s use of the Software and the Content shall be at Customer’s sole risk. Benbria reserves the right, in its sole discretion, to correct any errors or omissions in any part of the Software or in any portion of the Content. Benbria may make any other changes to the Software and the Content at any time without notice.
7.4 General Warranty. Benbria warrants that (i) Benbria has the ability and right to accept and abide by the terms noted herein; (ii) to Benbria’s knowledge, neither the Software nor the Content infringes upon the Proprietary Rights of any third party; (iii) to Benbria’s knowledge, there are no liens, encumbrances or claims pending or threatened against Benbria or that adversely relate to the rights or licenses granted herein or to the Software and the Content; and, (iv) subject to the standard conditions applicable to shrink wrap software and other foundational software used in the creation of, or required in conjunction with, the Software, no licenses, permission or releases of third party rights are necessary for Customer’s use of the Software in accordance with the terms noted herein. For purposes herein, “Proprietary Rights” means any or all intellectual property and other property or proprietary rights, including, without limitation, patents, copyrights, trade secrets and trademarks.
7.5 Warranty Disclaimer. EXCEPT FOR THE WARRANTIES IN THIS SECTION 7, THE SOFTWARE AND THE CONTENT ARE PROVIDED “AS IS” AND BENBRIA AND ITS LICENSORS HEREBY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BENBRIA DOES NOT WARRANT THAT THE SOFTWARE AND THE CONTENT WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SOFTWARE AND/OR THE CONTENT WILL BE FREE FROM ERRORS OR FUNCTION WITHOUT INTERRUPTION, THAT ANY STORED DATA WILL BE ACCURATE OR RELIABLE NOR THAT ANY CUSTOMER DATA CAN BE RESTORED FROM ANY PARTICULAR BACKUP PROCEDURE. BENBRIA DOES NOT WARRANT THAT USE OF THE SOFTWARE WILL ENABLE CUSTOMER TO ACHIEVE ANY PARTICULAR RESULT OR RESULTS IN CUSTOMER’S BUSINESS OPERATIONS.
8.0 Limitation of Liability
8.1 IN NO EVENT WILL BENBRIA BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF DATA, LOSS OF PROFITS, COST OF COVER, ARISING FROM THESE TERMS, THE SOFTWARE OR THE CONTENT, HOWEVER CAUSED AND REGARDLESS OF THEORY OF LIABILITY. IN ADDITION, EXCEPT WITH RESPECT TO CLAIMS BASED ON WILFUL MISCONDUCT OR GROSS NEGLIGENCE, IN NO EVENT WILL BENBRIA BE LIABLE FOR ANY DAMAGES OF ANY KIND GREATER THAN THE AMOUNTS PAID TO BENBRIA HEREUNDER. BENBRIA WILL NOT BE LIABLE FOR ANY DELAYS OR DAMAGES ATTRIBUTABLE TO PROBLEMS INHERENT IN INTERNET AND ELECTRONIC COMMUNICATION FOR ANY BREACHES OF DATA SECURITY OR FOR DELAYS RELATING TO FAILURE OF CUSTOMER’S HARDWARE. THESE LIMITATIONS WILL APPLY EVEN IF BENBRIA HAS BEEN ADVISED OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF THIS SECTION SHALL APPLY EVEN IN THE EVENT OF A FAILURE OF THE ESSENTIAL PURPOSE OF THIS PROVISION.
8.2 Benbria will not be liable for the deletion of, correction to, destruction of, damage to, loss of or failure to store the Customer Data.
9.0 Indemnification
9.1 Indemnification by Benbria. Benbria shall indemnify, defend and hold Customer harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from any claimed infringement or violation by Benbria of any Proprietary Right with respect to the Software and the Content; provided, however, that the foregoing notwithstanding, Benbria’s obligation to indemnify will not apply to an infringement or violation that is attributable to any unauthorized use, access or modification of the Software by Customer or Customer’s employees, agents or customers. Benbria’s liability arising from the provision of any such indemnification shall be limited to the total value of fees paid by the Customer to Benbria under the initial term of use as noted in the Loop Order Form.
9.2 Cooperation. Notwithstanding Section 9.1 of these Terms of Use, Benbria is under no obligation to indemnify and hold Customer harmless unless (i) Benbria receives notice of the suit or claim from Customer and is furnished with a copy of each communication, notice or other action relating to said claim promptly after Customer receives such notice and each such communication; provided that, failure to deliver timely notice shall not relieve Benbria of its obligations hereunder unless Benbria is materially prejudiced by such failure; (ii) Benbria will have the right to assume sole authority to conduct the trial or settlement of such claim or any negotiations related thereto at Benbria’s expense; and (iii) Customer will provide reasonable information and assistance requested by Benbria in connection with such claim or suit, at Benbria’s cost and expense.
9.3 Indemnification by Customer. Customer shall indemnify, defend and hold Benbria harmless from any claims, demands, liabilities, losses, damages, judgments or settlements, including all reasonable costs and expenses related thereto including legal fees, directly or indirectly resulting from (a) any allegation that Customer has engaged in conduct, which if true would breach Customer’s warranties or obligations under these Terms of Use; (b) any allegation that the Customer Data infringes the Proprietary Rights of any third party; (c) Customer’s negligent or wilful misconduct; (d) any violation by Customer of any privacy laws, regulations and directives relating to the collection, use or disclosure of any Personal Information provided to Benbria hereunder; and (e) Customer’s breach of warranties noted in Sections 7.1 and 2.1 of these Terms of Use Benbria reserves the right to participate in the defence of any such claim and to be represented by counsel of its choice.
10. Term and Termination
10.1 Term. The term of use is specified in the Loop Order Form and shall be as defined in Section 1.2 “License Term” and shall continue unless terminated in accordance with the terms of use noted herein.
10.2 Termination Upon Insolvency. Benbria may terminate usage of the Software upon receipt of written notice by the Customer: (i) of the institution of insolvency, receivership or bankruptcy proceedings or any other proceedings for the settlement of debts of the other party, (ii) upon the making of an assignment for the benefit of creditors by the other party, or (iii) upon the dissolution of the other party.
10.3 Termination Upon Default. Either party may terminate usage of the Software in the event that the other party materially defaults in performing any obligation noted herein and such default continues and is not remedied for a period of thirty (30) days following written notice of default; provided, however, that if either party contests either the existence or the basis of a breach asserted by the other party (a “Dispute”), then such Dispute shall be resolved pursuant to Section 13.3 and if such Dispute is resolved in favour of the party asserting such breach, then the other party shall have thirty (30) days to cure such breach as directed by the third party resolving such Dispute.
10.4 Survival of Certain Terms. All provisions noted herein reasonably required to survive shall survive termination of usage of Software. All other rights and obligations of the parties will cease upon termination of usage of the Software.
10.5 Effect of Termination. Upon termination of the terms herein for any reason Customer’s access to the Software will end immediately and Customer’s account will be disabled.
11. Confidential Information
11.1 Neither party shall use or disclose any Confidential Information of the other party. A party receiving Confidential Information from the other party will use the highest commercially reasonable degree of care to protect that Confidential Information. The Software and the Content, including methods, ideas or concepts utilized therein, and all information identified by a disclosing party as proprietary or confidential (“Confidential Information”) will remain the sole property of such disclosing party, and will not be used or disclosed to any third party without the express written consent of the disclosing party (except to employees or consultants who are bound by a written agreement with such party to maintain the confidentiality of such Confidential Information in a manner consistent with this provision). Items shall not be considered to be Confidential Information if they are (i) available to the public other than by a breach of these Terms of Use or an agreement with the disclosing party, (ii) rightfully received from a third party not in breach of an obligation of confidentiality, (iii) independently developed by employees of recipient without access to the Confidential Information of the disclosing party, (iv) rightfully known to the recipient at the time of disclosure, or (v) produced in compliance with applicable law or a court order, provided the other party is given reasonable notice of such law or order and an opportunity to attempt to preclude or limit such production. Customer agrees that the terms and conditions of these Terms of Use will be considered to be Confidential Information of Benbria.
12.0 Public Disclosure
12.1 The parties shall have the right to publicly disclose their engagement with the other party, as contemplated under these Terms of Use, in marketing initiatives, case studies, website posts, presentations, promotional material, and press releases. Any such public disclosure shall be subject to the prior written approval of the other party.
12.2 These Terms of Use shall remain confidential and subject to the terms noted in Section 11 “Confidential Information”.
13.0 Miscellaneous
13.1 Notices. Any notice required or permitted hereunder will be in writing, and will be given by electronic mail at support@benbria.com. Such notice will be deemed to have been received twelve (12) hours after it was sent.
13.2 Assignment. The right to use the Software may not be transferred or assigned, in whole or in part, by either party either voluntarily or by operation of law without the prior written consent of the other party, which consent shall not be unreasonably withheld.
13.3 Governing Law; Arbitration. These Terms of Use will be governed by the laws of the Province of Ontario and the federal laws of Canada applicable therein. Except for disputes for which injunctive relief is sought (for example, to prevent the unauthorized use or disclosure of proprietary materials or information) the following procedures shall be used to resolve any dispute arising out of or in connection with these Terms of Use. Promptly after the written request of either party, each of the parties shall appoint a designated representative to meet in person or by telephone to attempt in good faith to resolve any dispute. If the designated representatives do not resolve the dispute within ten (10) days of such request, then an executive officer of each party shall meet in person or by telephone to review and attempt to resolve the dispute in good faith. The executive officers shall have ten (10) days to attempt to resolve the dispute. Any disputes that are not otherwise resolved by the parties shall be submitted to binding arbitration in Toronto, Ontario in accordance with the Arbitration Act, 1991 (Ontario) (the “Act”). Before entering into arbitration, the parties shall each appoint an arbitrator, and these two arbitrators shall select a third arbitrator to be a member of the arbitration panel. Should the two arbitrators not be able to agree on a choice of the third arbitrator, then the parties shall defer to the procedure for selection of an arbitrator under the Act. None of the arbitrators shall be officers or employees of the parties. Each such arbitrator shall be a lawyer having experience and familiarity with information technology disputes. The arbitrators shall have the right to award costs, fees and expenses, including but not limited to the arbitrators’ fees and reasonable lawyers’ fees, to the prevailing party. The parties will jointly pay arbitration costs pending a final allocation by the arbitrators. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof. The arbitrator’s decision shall be final and binding upon the parties.
13.4 Force Majeure. Under no circumstances will either party be liable to the other for any failure to perform its obligations where such failure results from causes beyond that party’s reasonable control.
13.5 Independent Contractors. The relationship of Benbria and Customer established by this these Terms of Use is that of independent contractors, and nothing contained herein will be construed to (i) give either party the power to direct and control the day‑to-day activities of the other, (ii) constitute the parties as legal partners, joint ventures, co‑owners or otherwise as participants in a joint undertaking, or (iii) allow either party to create or assume any obligation on behalf of the other party for any purpose whatsoever. All financial and other obligations associated with the businesses of Benbria and Customer is their sole respective responsibilities.
13.6 Entirety and Waiver. These Terms of Use and all documents incorporated by reference hereto will constitute the entire agreement between the parties with respect to its subject matter, and all prior agreements, representations, and statements with respect to such subject matter are superseded. No amendments to these Terms of Use shall be binding unless agreed to in writing by authorized representatives of both parties. No failure of either party to exercise or enforce any of its rights under these Terms of Use will act as a waiver of such breaches and the waiver of any breach will not act as a waiver of subsequent breaches.
13.7 Binding Agreement. These Terms of Use are binding on the parties’ successors and permitted assignees.
14.0 Benbria Technical Support
14.1 Benbria Software Technical Support – Technical support shall be provided according to the contracted support level.
14.2 Software Upgrades – Upgrades to the Software shall be as per Benbria software upgrade schedule, as published, or as needed.
15. Responsibilities of Customer and Benbria
15.1 Customer Responsibilities: The Customer shall be responsible for the following:
15.2 Benbria Responsibilities: Benbria shall be responsible for the following: