TERMS & CONDITIONS
Please read these Terms and Conditions ("Terms") carefully before ordering, accessing or using the Services and Licensed Materials. If you are entering into an agreement or ordering document on behalf of a corporation or other legal entity, you represent and warrant that you have the authority to bind such entity to these Terms, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with these Terms, you must not accept this agreement or the applicable order document and you may not use the Services described herein. You agree to be bound by these Terms by agreeing to be bound by this agreement through the online acceptance mechanism provided by Appligogiques or by submitting payment in response to an order document that references these Terms.
Appligogiques reserves the right to modify, delete or supplement these Terms at any time, with or without notice. Such modifications shall be effective immediately. If at any time you no longer agree to be bound by these Terms, you must immediately cease accessing the Services related to these Terms, you may no longer use the Licensed Materials in your possession, and you must delete any Licensed Materials stored in your possession, in accordance with this agreement.
These Terms, together with any other documentation relating to the Licensed Materials executed between you and Appligogiques with respect thereto (collectively, the "Agreement"), are entered into by and between Appligogiques Education, a corporation validly existing under the laws of Quebec, Canada ("Appligogiques" or the "Licensor") and the specific person or entity identified as the Licensee or customer or party thereto in the associated agreement, order document or purchase order (the "Licensee" or "You"). Licensee and Licensor may be referred to collectively as the "Parties" or individually as a "Party". The terms and conditions set forth in this Agreement govern your purchase and use of the Services and Licensed Materials (as defined herein, respectively) and shall become effective on the date and in the manner described herein ("Effective Date").
Except with the prior written consent of Appligogiques, you may not access the Services or Licensed Materials in any manner that directly competes with Appligogiques' business. You may not access the Services or Licensed Materials for the purpose of monitoring the availability, performance or functionality of the Services or Licensed Materials, or for the purpose of benchmarking or competing with Appligogiques' business.
"Third Party Applications" means optional, web-based applications and offline software products or data that are provided by third parties and that Licensee may choose to install for use with the Services, and that are not required to use the Services, but interact with the Services.
"Aggregated Data" means Licensee Data in de-identified and aggregated form.
"Licensee Data" means information, data, data sets, data compilations and any other content, in any form or medium whatsoever, which is collected, downloaded or otherwise received, directly or indirectly from Licensee or any Authorized User by or through the Services (including the Platform) or which incorporates or is derived from the processing of such information, data or content by or through the Services. For the avoidance of doubt, Licensee Data includes information reflecting access to or use of the Platform by or on behalf of Licensee or any Authorized User, other than information, data and other content which is derived by or through the Services from the processing of Licensee Data but which is sufficiently different from such Licensee Data that such Licensee Data cannot be reverse engineered or otherwise identified from the inspection, analysis or further processing of such information, data or content.
"Confidential Information" means any information disclosed (in each case, by or on behalf of a Party) under this Agreement that is, or reasonably should be considered confidential to a Party, including, without limitation, the Terms of this Agreement, the Services and Licensed Materials (including Uploaded Content, as defined herein), Services and technologies of each Party. Confidential Information does not include information which Recipient already legitimately knew, which becomes public through no fault of Recipient, which was independently developed by Recipient, or which was lawfully given to Recipient by a third party who was not under an obligation of confidentiality.
"License" means a current and valid license to access or use the Services, which may include, but is not limited to, a purchased subscription to the Services for one or more Users, a trial subscription to the Services granted for one or more Users associated with a Licensee, or any other valid right/license authorized by Licensor.
"Licensee" or "You" or "Your" means the person or legal entity that holds a License to the Services. For the purposes of this Agreement, the term "Licensee" shall also mean the authorized users associated with your entity or any other authorized license.
"Licensed Materials" means the Platform, as well as all game content and data and reports, including, but not limited to, exercises, texts, assessments, photographs, videos, audio materials, graphics, tools, analyses, features, products and information displayed and/or otherwise provided by the Services.
"Platform" means Appligogiques' proprietary software application, which includes games offered by Appligogiques, as well as any third-party or other software to which Appligogiques provides access and the use of which forms part of the Services.
"Services" means all paid or trial subscriptions to various online, web-based applications, APIs, data feeds, software, hardware, data downloads and plugins offered by or accessed through the Platform, and the Licensed Materials contained therein, if any.
"User" or "Users" means one or more persons authorized by Licensee to use the Services, for whom subscriptions to a Service have been purchased and to whom Licensee (or Licensor at Licensee's request) has provided logins and passwords. Users are limited to students who have a learning relationship with the Licensee's organization.
2. PURPOSE, RIGHTS AND LICENSE
2.1. Provision of Services and Subscriptions. Licensor makes the Services available to Licensee pursuant to this Agreement or other ordering documents during the Subscription Period ("Subscription Period"). In order to subscribe to the Services, the Licensee, and each of its Authorized Users, must accept these Terms. Unless expressly stated otherwise in any other agreement signed by both parties, in the event of any conflict between this Agreement and such other document, this Agreement shall prevail. Acceptance of these Terms through the click-through mechanism provided by Appligogiques constitutes acceptance and agreement by Licensee to subscribe to the Services in accordance with the terms of this Agreement. Licensor expressly rejects any additional or different terms and conditions, including but not limited to terms and conditions added or appended to this Agreement by Licensee, unless agreed to in writing by both parties. The person signing this Agreement on behalf of the Licensee represents and warrants that he/she has the authority to bind the Licensee by signing and submitting these documents.
2.2. Subcontractors. Appligogiques may, from time to time, at its discretion, engage third parties to perform the Services (each, a Subcontractor).
2.3 Grant of license. Licensor grants Licensee a non-exclusive, non-transferable, limited license to use the Platform and all other Licensed Materials provided through the Services only as expressly authorized herein. The Services are solely and exclusively for Licensee's use and may not be used for any unlawful purpose or in any manner inconsistent with the provisions of the terms of this Agreement. Except as expressly provided herein, Users may use the Services, including any Licensed Material contained therein, only in the course of Licensee's regular and ordinary business and for internal use only. Licensee further agrees that its purchases hereunder are neither contingent upon the delivery of any future functionality or feature, nor dependent upon any oral or written public comment made by Licensor regarding any future functionality or feature.
2.4. Updates to the Platform. Appligogiques reserves the right to make, at no additional cost to Licensee, updates and modifications to the Platform (including maintenance releases, bug fixes, corrections and minor modifications) that Appligogiques generally makes available to its other customers ("Updates"); provided that Appligogiques does not make modifications or Updates that materially diminish the basic functionality of the Platform impacting Licensee during the Subscription Period. Appligogiques shall not incur any liability for loss of functionality or any other loss suffered by Licensee as a result of its own decision not to timely install all available Updates and make them available to all Authorized Users once informed of their availability by Appligogiques. Appligogiques may from time to time introduce new or substantially different Supplemental Services, enhancements or Services which are outside the scope of this Agreement and which are subject to additional charges. Such Additional Services, enhancements or Services shall not be considered an upgrade. Licensee shall not be obligated to use or pay for such new Additional Services, Enhancements or Services, and the use or deployment of such Services shall be subject to a separate agreement between the parties, as applicable.
2.5. Beta Services. Appligogiques may make available to Licensee, at no additional charge, Services or features designated as beta, preview, evaluation or similar descriptions ("Beta Services"). If Licensee elects to use the Beta Services (at Licensee's sole discretion), Licensee acknowledges and agrees that such Beta Services are intended and made available for evaluation purposes only, are not intended for production use, are unsupported, are provided "as is," to the exclusion of any express or implied representations or warranties of any kind, and that such Beta Services may be subject to Additional Terms. Licensee acknowledges and agrees that: (a) the Beta Services are not considered "Services" under this Agreement; and (b) all of Appligogiques' restrictions, reservation of rights and Licensee's obligations with respect to the Services apply to Licensee's use of the Beta Services. Licensee's right to use the Beta Services shall expire on the date that a version of the Beta Services becomes generally available to customers, provided that in the event that the Beta Services are deployed and become available as a Service under this Agreement, additional terms, conditions and fees shall apply, all as set forth in a specification. Appligogiques may discontinue the Beta Services (at its sole discretion) and may never make them generally available. Except as otherwise provided in this Agreement, which, for the avoidance of doubt, includes the indemnities set forth in this Agreement, Appligogiques disclaims any liability for any loss or damage arising out of or in connection with any Beta Services. Appligogiques will not implement or provide Beta Services to Licensee without Licensee's prior written consent.
2.6. Submissions. Certain portions of the Services may offer user-generated features that allow users to upload, submit, store, send or receive certain content in addition to Licensed Materials ("Submissions"). As between Appligogiques and Licensee, Licensee shall own and be responsible for all Submissions to the extent such Submissions are not Licensed Materials or other proprietary property of Appligogiques. Subject to the terms of this Agreement, Licensee grants Licensor a worldwide, non-exclusive, time-limited license to access, use, process and display the Submissions, but only to the extent reasonably necessary to (i) provide and improve the Services to and for Licensee; (ii) address and resolve any security, support or technical issues; (iii) disclose certain information as required or compelled by applicable law; and (iv) act as expressly authorized in writing by Licensee. Licensee certifies and warrants that the Submissions comply with the terms and conditions set forth herein and acknowledges and agrees that such Submissions do not create any new relationship or modify any existing relationship between the Parties. Licensor reserves the right to delete any Submission which, at Licensor's sole discretion, violates the terms of this Agreement.
2.6.1. Authorized use. Subject to the conditions set forth in this Agreement, the Licensee is authorized to:
A. Access the Platform's game features, and allow authorized Users to access them;
B. Download and/or print selected and limited portions of the Licensed Materials to a location or storage device under Licensee's exclusive control and solely for Licensee's own use ("Downloaded Content");
C. Extract, quote and/or distribute the Licensed Materials or Uploaded Content for a global report of the use of the Platform ("Reports"), but only internally (i.e. within the Licensee's organization and not to third parties) and only for the Licensee's own use and in the normal course of its operations; and
D. From time to time, extract and distribute in electronic or hard copy form to third parties (in support of Licensee's primary business) limited and insubstantial portions of the Licensed Materials; provided, however, that in all cases Licensee shall preserve all copyright and other proprietary notices and credit Appligogiques, where applicable. Recipients of these Licensed Materials are authorized to use them for their own internal use only and are prohibited from further distribution. Under no circumstances may Licensee distribute the Licensed Materials in any quantity or in any manner that would substitute for the purchase of the Services or Licensed Materials by the recipient.
2.6.2. Notwithstanding the provisions of Section 2.6.1 to the contrary, Licensee agrees and acknowledges that it will not share or promote any excerpts or distribution of the Licensed Materials with the media (in any form whatsoever) without the prior written consent of Appligogiques. Licensee further agrees and acknowledges that access to and distribution of such Licensed Materials and/or Downloaded Content shall in all cases comply with this Agreement and any applicable law.
2.7.1 Restrictions on use. The Licensee agrees and warrants that the Licensee shall not:
1. Use the Services, Licensed Materials, Platform or Uploaded Content in a manner contrary to or in violation of any applicable law;
2. Copy, reproduce, modify, distribute, publicly display, use or disclose the Services, Licensed Materials or Uploaded Content, except as expressly permitted by this Agreement;
3. Sell, license or commercially distribute the Services, Licensed Materials or Uploaded Content to third parties or use them as a component or basis of any material offered for sale, license or commercial distribution, including the use of Licensed Materials as the primary source for creating and/or maintaining any market index or database that Licensee publishes or distributes to third parties;
4. Distribute or commercially provide databases, interfaces, mobile platforms or software programs comprising the Services, Licensed Materials or Downloaded Content;
5. Share, recompile, decompile, disassemble, reverse engineer, or otherwise make or distribute any form or derivative work of the Services, Licensed Materials or Downloaded Content;
6. Use the Services, Licensed Materials or Uploaded Content, directly or indirectly, in a manner that could cause the Services, Licensed Materials or Uploaded Content so used to: (i) be substituted for the Services by a third party, (ii) affect Appligogiques' ability to earn revenue in connection with the Services, or (iii) compete with Appligogiques' business;
7. Store or use the Licensed Materials or Uploaded Content in any archive, database or other searchable repository, except as expressly permitted by this Agreement;
8. publish Submissions that are defamatory, infringing, illegal or otherwise consist of information that Licensee does not have the right to transmit under any applicable law, contractual obligation or fiduciary relationship (including, without limitation, confidential or proprietary information learned in the course of employment or restricted by valid non-disclosure agreements); or
9. Upload, post or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment.
2.7.2. Notwithstanding anything to the contrary in Section 2.7.1, Appligogiques reserves the right, in its sole discretion, to temporarily or permanently block access to the Platform or Services for violation of these restrictions on use, including the ability to download or distribute any Licensed Material, at any time without notice and with immediate effect.
2.8. Licensee's compliance responsibilities. Licensee shall (i) be responsible for Users' compliance with this Agreement; (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services; (iii) promptly notify Licensor of any known or suspected unauthorized access or use, and (iv) use the Services in accordance with this Agreement, applicable laws and government regulations, and specifically ensure that any collection, uploading, processing, storage, access and sharing of personal information on or through the Services is done in strict compliance with applicable privacy and other laws. Licensee further agrees not to (a) make the Services available to anyone other than Authorized Users, (b) use the Services to store or transmit any counterfeit, defamatory, or otherwise illegal or tortious material, or to store or transmit any material in violation of the intellectual property or privacy rights of any third party, (c) use the Services to store or transmit any "Malicious Code", which includes, but is not limited to, any viruses, worms, etc., (d) use the Services to store or transmit any "Virus Code", which includes, but is not limited to, any viruses, worms, etc., (e) use the Services to store or transmit any material that may be harmful to third parties, or (f) use the Services to store or transmit any material that may be harmful to third parties, (c) use the Services to store or transmit "Malicious Code", including but not limited to viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs, (d) interfere with or disrupt the integrity or performance of the Services or third party data contained therein, or (e) attempt to gain unauthorized access to the Services or their related systems or networks.
2.9. Without Licensee's prior written consent, Licensor will not make any statement that could be construed to mean or imply that Licensee in any way endorses or is associated with Licensor. Notwithstanding the foregoing, if Licensee or Authorized Users agree to provide a case study or such written or public support, Licensor is hereby granted an irrevocable, worldwide, limited license to use the respective content, likeness and/or name solely for the purposes of the case study/support. Under no circumstances shall either party make any promotional announcements that disclose the other party's confidential information.
2.10. Third Party Applications and Licensee Data. Licensee acknowledges and agrees that if Licensee installs or activates optional Third-Party Applications for use with the Services, Licensor may permit the providers of such Third-Party Applications to access Licensee Data as required for the interoperability of such Third-Party Applications with the Services. Licensor shall not be responsible for the disclosure, modification or deletion of Licensee Data resulting from such access by third party Application providers, and such access and use of Licensee Data shall be subject to the privacy policies of such third party Application provider. Licensee acknowledges that functionality of the Service that interacts with optional third-party APIs or widgets is dependent upon the continued availability of such APIs or widgets and their schedule for use with the Services. If such suppliers cease to make their APIs or widgets or program available on reasonable terms for the Services, Licensor may cease to provide such service features without entitling Licensee to a refund, credit or other compensation. For the avoidance of doubt, Licensee may elect to use the Services to prevent Users from installing or activating such third-party Applications for use with the Services.
3. USE AND SHARING OF LICENSEE DATA
3.2 Collection and hosting of corporate data. Licensee agrees and acknowledges that the operation of the Platform and all related Services relies on Licensee's submission of Licensee Data via the Platform, as well as related metadata that is used by Appligogiques to build a profile on Users, such as User interaction with Platform features, searches, logins and use of other Platform features.
3.3 Responsibility for Licensee Data. Without limiting the generality of the foregoing, Licensee agrees that it is solely responsible for the creation, accuracy, completeness, ownership, publication and dissemination of all Licensee Data made available on the Platform, and that it is responsible for obtaining and maintaining all rights, licenses, permissions, releases, approvals, authorizations, credits or attribution information applicable to Licensee Data and for the payment of all applicable royalties or fees in connection therewith. Licensee acknowledges that all publications submitted by it or its authorized users are public communications and are therefore not confidential. As between Licensee and Appligogiques, all intellectual property rights in Licensee's Data, including but not limited to all patents, copyrights, trade secrets, trademarks or other intellectual property rights, shall remain the exclusive property of Licensee. Notwithstanding the foregoing, by submitting or making available Licensee Data for display on the Platform, Licensee hereby grants Appligogiques a royalty-free, worldwide, non-exclusive license, solely for internal purposes, to use, reproduce, modify, adapt, translate and display such Licensee Data in any format and medium Appligogiques chooses. In accordance with Section 3.2.3, this license shall survive termination of this Agreement, unless expressly terminated by Licensee. Appligogiques does not endorse and assumes no obligation to monitor or screen any Licensee Data posted or otherwise made available on the Platform. Appligogiques reserves the right, but assumes no obligation, to refuse or remove any Licensee Data. Appligogiques may take any reasonable action it deems necessary or appropriate with respect to Licensee Data that :
● does not comply with these Conditions;
● is illegal; or
● is otherwise undesirable, inappropriate or inaccurate, including Licensee Data that is :
o Reprehensible ;
o contains viruses, time bombs, Trojan horses, worms or other computer programming routines that may damage or disrupt the operation of the site;
o are knowingly false, inaccurate or misleading.
"objectionable" means any material that is: (a) defamatory, illegal or plagiarized; (b) that a reasonable person would consider harassing, abusive, threatening, obscene, hateful or racially/ethnically offensive; (c) that violates a person's privacy or publicity rights; (d) that violates any law, regulation or ordinance; (e) that encourages spam; or (f) whose primary purpose is commercial advertising rather than informational content. Messages concerning transactions, prices or conditions are prohibited. The above list is not exclusive and are examples only.
3.4 Aggregate data
(a) Licensee hereby grants to Appligogiques, in perpetuity, an exclusive (even for Licensee), royalty-free, worldwide right and license to the Aggregated Data for all purposes related to Appligogiques' business, subject to the terms and conditions of this Agreement. For greater clarity, Appligogiques shall have the right to process, reformat, manipulate, adopt, create derivative works from, copy, display, import, export, store and otherwise use, in whole or in part, the Aggregate Data in any manner Appligogiques chooses, subject to applicable law and the terms and conditions set forth in this Agreement.
(b) Notwithstanding Section 3.4(a), Appligogiques acknowledges that, during the Subscription Period and after termination or expiration of this Agreement for any reason, Licensee retains the right to: (i) process, reformat, manipulate, adopt, create derivative works from, copy, display, import, export, store and otherwise use the Aggregated Data for: (A) its own internal business purposes, including performance management and maintenance of its assets, and; (B) its own non-commercial technical monitoring or administrative purposes.
(c) It is understood that Appligogiques agrees that it is not entitled to any data and that Licensee is not obligated to provide Appligogiques with any data relating to or arising from its own internal activities conducted by Licensee without the use or participation of the Platform.
4. REGISTRATION AND SECURITY
4.1 Secure Login registration and security. Some of the Services require a secure login via a unique username and password (collectively, "Secure Identifiers"). If Users access the Services using Secure IDs, Licensee agrees to the following (and will require its Users to agree to the following) for purposes of initial registration and general security of the IDs: (i) as part of the registration procedure which may be required to obtain access to the Services, Licensee shall provide Licensor with certain truthful registration information (subject to all confidentiality obligations set forth herein), each registration being reserved for a single User; (ii) Users will have access to the Services during the Subscription Period through the Secure ID, which may only be used by Users to access the Services to the extent that such Users are authorized to access and use the Services in accordance with the terms of this Agreement; and (iii) Licensee agrees to treat the Secure Identifier as confidential and, with respect to Users, not to disclose or share such Secure Identifier, directly or indirectly, to any person other than as directed by Licensee or authorized in writing by Licensor. Notwithstanding anything to the contrary herein, Licensor shall not be liable to Licensee or any other third party person or entity for any loss or damage resulting from Licensee's failure to comply with these security requirements. If Licensee intends or is directed to sell or transfer any device on which the Services are accessible, Licensee agrees to remove any Licensed Materials and to delete any Internet files (i.e., cookies) obtained by or through the use of the Services that are stored on such device.
4.2. Auditing and Monitoring. Subject to any confidentiality obligations contained herein, Appligogiques reserves the right to audit and monitor the use of the Services in order to ensure compliance with the Terms of this Agreement and to maintain and improve the provision of the Services. In addition, upon thirty (30) days prior written notice, Licensor may audit Licensee's use of the Services for purposes of compliance with sections 2 and 3 of this Agreement, particularly with respect to the compliance of Secure IDs. The Licensee agrees to cooperate with the Licensor's audit and to provide reasonable assistance and access to information. Licensee agrees to pay all applicable overage fees within thirty (30) days of written notice. Failure to pay such fees may result in termination of technical support or termination of the licenses and/or this Agreement. Licensee agrees that Licensor shall not be liable for any costs incurred by Licensee in cooperating with the audit.
5. PROPERTY RIGHTS
5.1. Reservation of rights. The Services are the exclusive property of Appligogiques and are protected by copyright, patent, trademark and other proprietary and intellectual property laws. Appligogiques retains all rights in the Services, including all copyrights and other proprietary rights throughout the world. Except as expressly provided herein, use of the Services shall in no event be construed as conferring upon Licensee, the User or any third party any license or right, by implication, estoppel or otherwise, under any law, rule or regulation, including, without limitation, those relating to copyright or other intellectual property rights. Licensee acknowledges and agrees that Licensee and Users have no ownership rights in the Services or the Licensed Materials contained therein, and that no such rights are hereby granted. The grant of a license hereunder shall not affect the ownership of any Licensed Materials, whether tangible or intangible, and, except as expressly set forth in an agreement signed by both parties, none of the Licensed Materials accessed through the Services shall be deemed assigned to Licensee under any rule or doctrine of applicable law.
5.2. Intellectual Property. Licensee acknowledges and agrees that the Services and Licensed Materials are and have been written, developed, designed, compiled, prepared, revised, selected and arranged by Licensor and any relevant partner or affiliate through the application of methods and standards of judgment developed and applied through the expenditure of substantial time, effort and resources and constitute valuable intellectual property of Appligogiques. Licensee shall comply with all reasonable requests made by Appligogiques to protect its contractual, statutory and common law rights in the Services and Licensed Materials. All present and future right, title and interest in and to the Services and Licensed Materials (including the right to exploit the Services and any portion of the Services on any present or future technology) are reserved to Licensor for its exclusive use.
5.3. Feedback. If Licensee provides Appligogiques with ideas, comments or suggestions regarding the Services or Licensed Materials ("Feedback"), Appligogiques retains all rights to such Feedback and anything created as a result (including new Licensed Materials or derivative works) is the exclusive property of Appligogiques. For the avoidance of doubt, no intellectual property or confidential information of Licensee shall be deemed to be Feedback.
6.1 Confidential Information. Neither party will disclose the other party's Confidential Information except to its employees, agents or professional advisors who have a need to know such information and who have agreed in writing to keep it confidential. Recipient will ensure that such persons and entities use Confidential Information only to exercise the rights and fulfill the obligations set forth in this Agreement and in accordance with the confidentiality obligations applicable to Recipient's performance under this Agreement. Recipient may also disclose Confidential Information to the extent required by a valid order of a court or other governmental agency having jurisdiction over Recipient; provided that Recipient will use commercially reasonable efforts to: (i) promptly notify the Disclosing Party of any such lawful request prior to making any disclosure; and (ii) comply with the Disclosing Party's reasonable requests to object to or limit disclosure (at no cost to Recipient). If no protective order or other remedy is sought or obtained under this Section 6, Recipient may disclose only that portion of the Confidential Information that it is legally required to disclose and will use reasonable efforts to ensure that the Confidential Information disclosed will receive confidential treatment.
6.2. Obligations. Licensee agrees to protect the Services, Licensed Materials (including Downloaded Content) and Secure IDs from unauthorized use or disclosure by means at least as stringent as those it uses to protect its own confidential information, and in no event by less than reasonable means. Appligogiques will use reasonable efforts to preserve the confidentiality of information that Licensee enters into the Services, it being understood that this obligation does not apply to information that: (i) which Licensee provides in connection with any other service, feature or product of Appligogiques or its affiliates, or any other agreement between Licensee and Appligogiques or its affiliates; (ii) which previously resided, on a non-confidential basis, in the Services in direct connection with the information entered by Licensee in the Services; (iii) becomes generally known or available to the public or is disclosed without restriction in published materials or is disclosed, not as a result of a breach of the confidentiality obligations of Appligogiques or its affiliates (iv) is known to Appligogiques or its affiliates at the time of disclosure by Licensee; (v) Appligogiques or its affiliated entities obtain information from a third party or source other than Licensee that Appligogiques or its affiliated entities do not know is subject to confidentiality; (vi) Licensee requests Appligogiques or its affiliated entities to disclose; or (vii) Appligogiques or its affiliated entities are legally required to disclose.
6.3. Destruction. Notwithstanding anything to the contrary herein, upon termination or expiration of this Agreement, or at Appligogiques' request, Licensee will immediately and securely destroy or return all Appligogiques Confidential Information in its possession.
6.4 Injunction for breach of confidentiality. Licensee acknowledges and agrees that in the event of a breach of the confidentiality obligations of this Agreement by Licensee, Appligogiques may suffer irreparable harm and that no legal remedy can provide adequate protection against such harm or adequate compensation. Accordingly, Licensee agrees that, in such event, Appligogiques shall be entitled, in addition to all other potential rights and remedies available to it, to an immediate injunction which may be granted by a court of competent jurisdiction.
7. WARRANTIES AND DISCLAIMERS
7.1. Warranties. Each party represents and warrants that it has the legal authority to enter into this Agreement. The Licensee represents and warrants that the Licensee will not transmit to the Licensor any Malicious Code.
7.4. Third-party communications. Licensor disclaims all liability for any third party communications Licensee may receive or for any action Licensee may take or refrain from taking as a result of any communication addressed to Licensee by a third party, directly or indirectly, in connection with the Services provided herein ("Third Party Communications"). Licensee is solely responsible for evaluating and verifying the identity and reliability of the source and content of any Third Party Communication. Licensor assumes no responsibility for verifying the identity or reliability of the source or content of any Third Party Communication, and makes no representations or warranties in this regard.
8.1. Indemnification. Licensee agrees to indemnify, defend and hold the Appligogiques parties harmless, including reasonable attorneys' fees and costs, from any claim or demand made by any third party due to or arising out of (i) Licensee's access to or use of the Services or Licensed Materials, (ii) Licensee's breach of the Terms of this Agreement, or (iii) Licensee's infringement, including any unauthorized use of Licensee's account, of any intellectual property or other right of any person or entity. The indemnifying party reserves the right, at the indemnifying party's expense, to assume the exclusive defense and control of any matter for which the indemnifying party is required to indemnify the indemnified party and the indemnifying party agrees to cooperate in the defense of such claims by the indemnifying party. The indemnifying party agrees not to settle any matter without the prior written consent of the indemnified party. Appligogiques shall promptly notify Licensee of any claim for which indemnification is sought upon becoming aware thereof, provided, however, that failure to notify shall not relieve Licensee of its obligations hereunder, except to the extent that Licensee suffers material prejudice as a result of such failure to notify. In the event of a third party claim, Licensee shall have the right and option to undertake and control the defense of such action with counsel of its choice, provided however that Appligogiques may undertake and control such defense in the event of Licensee's material failure to undertake and control such defense. Appligogiques shall not consent to any judgment, concede, settle or compromise any claim without the prior written approval of Licensee (which approval shall not be unreasonably withheld).
9. LIMITATION OF LIABILITY
9.1. Limitation of Liability. EXCEPT IN THE CASE OF GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF LICENSOR, IN NO EVENT SHALL LICENSOR'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, INCLUDING THE USE OR INABILITY TO USE THE SERVICES, OR LICENSEE'S FAILURE TO PROPERLY OR COMPLETELY PERFORM ANY RESEARCH OR OTHER RELATED WORK (EVEN WITH LICENSOR'S ASSISTANCE), WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, SHALL EXCEED THE TOTAL AMOUNT PAID BY LICENSEE HEREUNDER IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE INCIDENT.
9.2 Exclusion of consequential and incidental damages. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AND EXCEPT IN THE CASE OF GROSS NEGLIGENCE, WILLFUL MISCONDUCT OR BREACH OF AN ESSENTIAL OBLIGATION OF THIS AGREEMENT, NEITHER APPLIGOGIQUES NOR ITS RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS OR SERVICE PROVIDERS SHALL BE LIABLE UNDER THIS AGREEMENT OR ANY LEGAL THEORY FOR ANY CONSEQUENTIAL DAMAGES, INCLUDING LOSS OF REVENUE, PROFITS OR CUSTOMERS OR EXPECTED CUSTOMERS, BUSINESS INTERRUPTION DAMAGES OR FAILURE TO REALIZE ANTICIPATED SAVINGS, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA AND ANY OTHER INCIDENTAL COMMERCIAL OR FINANCIAL LOSS OF ANY KIND OR DAMAGES WHICH ARE NOT THE DIRECT AND PROXIMATE RESULT OF ITS ACTIONS, WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT, BREACH OF PRIVACY OR OTHERWISE, EVEN IF THE PARTY WAS ALLEGEDLY ADVISED OR HAD REASON TO KNOW, BUT EXCLUDING CLAIMS BASED ON FRAUD.
10. DURATION AND TERMINATION
10.1. Term of Contract. Unless earlier terminated as permitted herein, this Agreement shall commence on the Effective Date and shall continue until terminated in accordance with the provisions hereof.
10.2. Termination for Cause. Either Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. In addition, Licensor may terminate this Agreement at any time, upon notice to Licensee, if Licensee invests in or implements a service competitive with any of Licensor's Services. For the avoidance of doubt, Licensee may not terminate this Agreement or any order document for convenience or without cause.
10.3 Effects of Termination. Upon termination of this Agreement for any reason, Licensee shall (and shall ensure that all Users) immediately cease accessing and using the Services and the Licensed Materials, and Licensee shall delete and destroy all copies of the Licensed Materials stored on Licensee's systems or otherwise in Licensee's possession or control. Licensee may, however, retain the Licensed Materials in aggregate form which are included in Reports which have been created pursuant to the terms of this Agreement prior to the effective date of termination.
10.4. Surviving provisions. Sections 5 (Proprietary Rights), 6 (Confidentiality), 7 (Warranties and Disclaimers), 8 (Indemnification), 9 (Limitation of Liability), 10.3 (Effect of Termination), 11 (Notice, Applicable Law and Jurisdiction), 12 (General Provisions) and this Section 10.4 shall survive any termination or expiration of this Agreement.
11. NOTICE, APPLICABLE LAW AND JURISDICTION
11.1. Notices. The Licensee acknowledges that it is contracting with the following entity under this Agreement, and that it must address notices under this Agreement to the following address: email@example.com.
11.2 Method of Notice. Except as otherwise provided in this Agreement, all notices, authorizations and approvals hereunder shall be in writing and shall be deemed to have been given: (i) personally, (ii) on the second business day after mailing, (iii) on the second business day after confirmed facsimile transmission, (iv) on the first business day after email transmission, or (v) by posting on the communication forms made available by the Platform, if any. Notices to Licensee shall be addressed to the system administrator designated by Licensee for all relevant Service accounts and, in the case of billing-related notices, to the billing contact designated by Licensee.
11.3. Applicable Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Quebec, without giving effect to its principles or rules of conflicts of law to the extent that such principles or rules are not mandatorily applicable by law and would require or permit the application of the laws of another jurisdiction, for all purposes, including, but not limited to, validity, interpretation, effect, performance and remedies. Each party consents to the exclusive jurisdiction of the courts of the Province of Quebec, in the judicial district of Montreal.
12. GENERAL PROVISIONS
12.1. Relationship between the parties. The parties are independent contractors. This Agreement does not create any partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
12.2. No Third Party Beneficiaries. With the exception of Licensor's third party suppliers and licensors, as applicable, there are no third party beneficiaries of this Agreement.
12.3. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of such right. Except as expressly set forth herein, the remedies provided herein shall be in addition to and not exclusive of any other remedies of any party at law or in equity.
12.4. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, such provision shall be modified by the court and construed to best effect the purposes of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in full force and effect.
12.5. Assignment. Licensee may not assign any rights or obligations hereunder, whether by operation of law or otherwise, without Licensor's prior written consent.
12.6 Entire Agreement. This Agreement constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, regarding its subject matter. No modification, amendment or waiver of any of the provisions of this Agreement shall be effective unless made in writing and signed or accepted electronically by the Party against whom the modification, amendment or waiver is to be asserted. However, in the event of any conflict or inconsistency between the provisions of the body of this Agreement, the terms of this Agreement shall prevail unless expressly stated otherwise in an agreement signed between the Parties. Notwithstanding anything to the contrary, no terms or conditions set forth in Licensee's purchase order or any other order document shall be incorporated into or become a part of this Agreement, and all such Terms and Conditions shall be null and void.