As used in this Agreement:
a) “Content” means the content, qualitative and quantitative data, information, documents, software, products, features and services contained or made available to Client through the Software Solution(s);
b) “Effective Date” means the Start Date provided in Schedule A to the Agreement;
c) “Fees” means the fees payable by Client to access and use the Software Solution(s) hereunder. Fees are set forth in Schedule A to the Agreement;
d) “Intellectual Property Rights” means all rights under any statute or common law protecting unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property and intangibles, derivatives thereof, and forms of protection of a similar nature anywhere in the world;
e) “Software Solution(s)” means the software as a service provided by Brizo to Client hereunder consisting in the aggregate of the components as contemplated in Schedule A;
f) “Enterprise Data” refers to the raw qualitative and quantitative data and information provided to Client periodically via it’s Brizo FoodMetrics Enterprise Data solution.
SERVICE AND INTELLECTUAL PROPERTY RIGHTS
Intellectual Property Ownership. Brizo alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to, the the Software Solution(s) and its associated Content and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Client or any other party relating to the Software Solution(s). This Agreement is not a sale and does not convey to Client any rights of ownership in or related to the Software Solution(s), the Content or the Intellectual Property Rights owned by Brizo.
License Grant. Subject to the terms of this Agreement, Brizo hereby grants to the Client, a non-exclusive, non-transferable, royalty free (except for Fees otherwise payable under this Agreement), right and license, to use, the Software Solutions. Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Software Solution(s) or the Content in any way; (ii) copy, reproduce, modify or make derivative works based upon the Software Solution(s) or the Content; (iii) create Internet “links” to the Software Solution(s) or “frame” or “mirror” any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer the Software Solution(s); (v) build a competitive product or service, (vi) build a product using similar ideas, features, functions or graphics of the Software Solution(s), (vii) copy any ideas, features, functions or graphics of the Software Solution(s) or (viii) “spider” the Software Solution(s) or otherwise automate data collection from the Software Solution(s) by any means.
Should Client decide to use the Brizo FoodMetrics Enterprise Data solution as per Schedule A, Brizo hereby grants to the Client, a non-exclusive, non-transferable, royalty free (except for Fees otherwise payable under this Agreement), right and license, to use the Enterprise Data. Client shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Enterprise Data in any way; (ii) build a competitive product or service.
TERM AND TERMINATION
This Agreement commences on the Effective Date and will remain in force for the initial term set forth in Schedule A to the Agreement (the “Initial Term”). Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term (the “Renewal Term”). However Client and Brizo may terminate this Agreement by providing the other Party with thirty (30) days written notice prior to the end of the Initial Term or any Renewal Term. The Initial Term and any Renewal Term shall be referred to herein as the (“Term”).
Termination for cause. Either Party may terminate this Agreement by written notice to the other party after the expiration of a period of thirty (30) days following written notice to the other Party concerning any of the following: (i) should the other Party become insolvent or file an assignment for the benefit of creditors; (ii) should bankruptcy proceedings be commenced by or against the other Party; or (iii) should the other party fail to cure a material breach.
Effect of Termination. Upon the expiration or termination of the Agreement, Client shall return to Brizo all Content and copies of the content provided hereunder or if Brizo has not requested such return within thirty (30) days of expiration or termination, Client shall permanently destroy its files and databases of any portion of the Content, and provide Brizo notice of such actions.
WARRANTIES, DISCLAIMER AND LIABILITY
Limited Warranty. Brizo warrants that the Software Solution(s) will be offered in a professional manner in accordance with prevailing industry standards.
Limitation of Liability. In no event shall either party’s aggregate liability exceed the amounts actually paid by and/or due from Client in the twelve (12) month period immediately preceding the event giving rise to such claim. In no event shall either party and/or its licensors be liable to anyone for any indirect, punitive, special, exemplary, incidental, consequential or other damages of any type or kind (including loss of data, revenue, profits, use or other economic advantage) arising out of, or in any way connected with this Software Solution(s), including but not limited to the use or inability to use the Software Solution(s), or for any content obtained from or through the Software Solution(s), any interruption, inaccuracy, error or omission, regardless of cause in the Content, even if the party from which damages are being sought or such party’s licensors have been previously advised of the possibility of such damages.
DISCLAIMER. THE SOFTWARE SOLUTIONS ARE PROVIDED ON AN “AS IS” BASIS, AND BRIZO EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR AS TO ACCURACY, COMPLETENESS OR ADEQUACY OF INFORMATION. CLIENT RECOGNIZES THE UNCERTAINTIES INHERENT IN ANY ANALYSIS OR INFORMATION THAT MAY BE PROVIDED AS PART OF THE SOFTWARE SOLUTIONS AND ACKNOWLEDGES THAT THE SOFTWARE SOLUTIONS ARE NOT A SUBSTITUTE FOR ITS OWN INDEPENDENT EVALUATION AND ANALYSIS AND SHOULD NOT BE CONSIDERED A RECOMMENDATION TO PURSUE ANY COURSE OF ACTION. BRIZO SHALL NOT BE LIABLE FOR ANY ACTIONS OR DECISIONS THAT CLIENT MAY TAKE BASED ON THE SOFTWARE SOLUTIONS OR ANY INFORMATION OR DATA CONTAINED THEREIN. CLIENT UNDERSTANDS THAT IT ASSUMES THE ENTIRE RISK WITH RESPECT TO THE USE OF THE SOFTWARE SOLUTIONS.
CONFIDENTIALITY AND DATA PRIVACY
Client Confidential Information. Brizo agrees to keep confidential any Client-specific information communicated by Client to Brizo in connection with the Software Solution(s)s that is (i) clearly marked confidential if provided in written form, or (ii) preceded by a statement that such information is confidential, if provided in oral form, and such statement is confirmed in writing within 15 days of its initial disclosure. This obligation of confidence shall not apply to any information that: (1) is in the public domain at the time of its communication; (2) is independently developed by Brizo; (3) entered the public domain through no fault of Brizo subsequent to Client’s communication to Brizo; (4) is in Brizo’s possession free of any obligation of confidence at the time of Client’s communication to Brizo; or (5) is communicated by the Client to a third party free of any obligation of confidence. Additionally, Brizo may disclose such information to the extent required by legal process.
Press Release. The Parties agree that Brizo may wish to announce the transaction contemplated by this Agreement in the form of a press release, subject to Client’s approval which shall not be unreasonably withheld, promptly after the execution of this Agreement.
Data Protection. In providing and using the Software Solution(s)s, Brizo and Client will each comply with all applicable data privacy legislation. Without limitation to this, Client shall ensure that any disclosure of personal data, whether in relation to Client’s employees or otherwise, made to Brizo by Client or on its behalf is made with the data subject’s consent or is otherwise lawful.
This Agreement may not be assigned by the Parties without the prior written approval of the other party but may be assigned without the other Party’s consent by any Party to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger.
Right to Audit. During the Term of this Agreement and for a period of one (1) year following its termination or expiration, Brizo reserves the right to audit Client upon reasonable written notice to verify compliance with this Agreement. Client shall maintain and make available to Brizo accurate records to permit Brizo or an independent auditor retained by Brizo to verify Company’s compliance with the terms and requirements of this Agreement.
Governing Law. This Agreement shall be construed pursuant to the laws of the Province of Québec and the laws of Canada applicable therein.
Force Majeure. Neither party shall be deemed in default of this Agreement to the extent that performance of its obligations or attempts to cure any breach are delayed or prevented by reason not within its reasonable control, such as an act of God, fire, storm, natural disaster, accident, act of government, labor dispute, shortages of materials or supplies or any other cause beyond the control of such party (“Force Majeure“) provided that such party gives the other party written notice thereof promptly and, in any event, within fifteen (15) calendar days of discovery thereof and uses its best efforts to cure the delay. In the event of such Force Majeure, the time for performance or cure shall be extended for a period equal to the duration of the Force Majeure but not in excess of three (3) months.
Injunctive relief. The Parties recognize that money damages may not be an adequate remedy for any breach or threatened breach of any obligation hereunder by Client involving intellectual property, confidential information or use of the Software Solution(s) beyond the scope of the rights granted by this Agreement. The Parties, therefore, agree that in addition to any other remedies available hereunder, by law or otherwise, Brizo shall be entitled to an injunction against any such continued breach by Client of such obligations without proving damages or posting a bond.
This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter hereof and supersedes any prior oral or written promises or agreements. There are no promises, covenants, or undertakings other than those expressly set forth in this Agreement. This Agreement may not be modified or amended except in writing, which is signed by authorized representatives from each party. The failure of either party to exercise any right or the waiver by either party of any breach shall not prevent a subsequent exercise of such right or be deemed a waiver of any subsequent breach of the same or any other term of the Agreement. Brizo and Client may give notice to the other party by way of (i) electronic mail to Client’s e-mail address set forth on the first page of this Agreement or to Brizo’s following e-mail address: email@example.com ; or (ii) letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the Parties’ headquarters. The provisions of this Agreement are declared to be severable. Should any provision of this Agreement be held to be void, invalid, inoperative, or unenforceable under applicable law, the remaining provisions of this Agreement shall not be affected and shall continue in full effect as though such provisions were deleted and the Parties agree to negotiate in good faith a substitute valid provision that most nearly approximates the Parties’ intent. Headings in this Agreement are included for reference only and shall not constitute a part of this Agreement for any other purpose. This Agreement may be executed in any number of counterparts and all counterparts taken together constitute one and the same instrument. Receipt of an originally executed counterpart signature page by facsimile or electronic reproduction of an originally executed counterpart signature page by electronic mail is effective execution and delivery of this Agreement