Terms of Use

Effective: July 23rd, 2024

1. Definitions
(a) “Affiliate” of a Party means, at the time such determination is being made, any other entity controlling, controlled by or under common control with such Party, in each case whether directly or indirectly, where “control” and its derivatives means the legal or beneficial ownership, directly or indirectly, of 50% or more of the shares (or other ownership interest, if not a corporation) of such entity ordinarily having voting rights or control in fact through the exercise of rights pursuant to an agreement.
(b) “Agreement” means this agreement, each Order Form entered into under this agreement, and all attachments thereto, as amended from time to time.
(c) “Archival Term” has the meaning set out in Section 9(e).
(d) “Authorized User” means an individual employee of Customer with a designated user name and password for access to and use of the Solution.
(e) “Customer” means the entity executing the applicable Order Form.
(f) “Customer Data” means any data, information, content, records and files that a Customer loads, transmits to, integrates with or enters into the Solution or otherwise provides or allows third parties to provide to Feroot, and any data, information, content, records and files that the Solution obtains from Customer’s servers or systems or from third parties on Customer’s behalf, including any and all personal information and Intellectual Property Rights in any of the foregoing.
(g) “De-Identified Data” has the meaning set out in Section 3(d).
(h) “Derivative Works” has the meaning set out in Section 3(d).
(i) “DPA” has the meaning set out in Section 10.
(j) “ID” has the meaning set out in Section 6(a).
(k) “Initial Term” has the meaning set out in Section 13(a).
(l) “Intellectual Property Rights” means: (i) any and all proprietary rights anywhere in the world provided under: (A) patent law; (B) copyright law (including moral rights); (C) trademark law; (D) design patent or industrial design law; or (E) any other statutory provision or common law principle applicable to this Agreement, including trade secret law, that may provide a right in either hardware, software, content, documentation, Confidential Information, trade-marks, ideas, formulae, algorithms, concepts, inventions, processes or know-how generally or expression or use of the same; (ii) any and all applications, registrations, licences, or any other evidence of a right in any of the foregoing; and (iii) any and all licences and waivers and benefits of waivers of the intellectual property rights set out in (i) and (ii) above, all future income and proceeds from the intellectual property rights set out in (i) and (ii) above, and all rights to damages and profits by reason of the infringement or violation of any of the intellectual property rights set out in (i) and (ii) above.
(m) “Feroot Property” has the meaning set out in Section 3(e).
(n) “Order Form” means the Feroot order form setting out the commercial terms between the Parties provided to the Customer.
(o) “Portal” means the Customer portal accessible via the Solution that displays Customer Data.
(p) “Privacy Policy” has the meaning set out in Section 10.
(q) “Renewal Term” has the meaning set out in Section 13(b).
(r) “Required Disclosures and Consents” has the meaning set out in Section 2(a).
(s) “Solution”means: (i) the software-as-a-service privacy management platform or downloaded equivalent having the functionality described in the cover page to this Agreement, as updated from time to time by Feroot without notice in its discretion; and (ii) all other software, hardware and systems used by Feroot to host and make the Solution available for Customer’s use and access, including the Portal
(t) “Term” means the Initial Term and any Renewal Terms.
(u) “Trial Period” has the meaning set out in Section 4.

2. Solution Availability
(a) Provisioning of the Solution. Conditional on Customer obtaining all third-party consents, authorizations and permissions, in respect of the access, collection, use, storage and disclosure by Feroot of all Customer Data as contemplated hereunder (collectively, the “Required Disclosures and Consents”), Feroot will make the Solution available to Customer on terms and conditions set out herein.
(b) Service Upgrades and Scheduled Downtime. Feroot may update, upgrade, enhance or otherwise modify the Solution in its sole discretion without notice, and may from time to time schedule downtime for maintenance, including suspending the Solution for emergency maintenance.

3. Rights and License Grants.
(a) Rights to Use and License Grants by Feroot. Subject to the terms and conditions of this Agreement, Feroot grants to Customer a non-exclusive, non-transferrable, revocable right during the Term: (i) to access and use the Solution through such interfaces, APIs or integrations that Feroot may offer from time to time solely to the extent required for the Authorized Users to access; and (ii) use the Solution in accordance with this Agreement for the Customer’s internal business purposes; (iii) make available the data-subject dashboard to customers of the Customer; and (iv) if approved in the Order Form, to download and use a copy of the Solution on Customer’s servers for the purposes set out in subsections (i) through (iv).
(b) Rights to Use and License Grants by Customer. Subject to the terms and conditions of this Agreement, Customer grants to Feroot a non-exclusive, royalty-free, fully paid-up, sub-licensable, transferrable and worldwide right and license during the Term to: (i) reproduce, modify, update, perform, create compilations, aggregations, enhancements, adaptations, translations, customizations or derivative works from or on the basis of, process, develop, access, collect, store and use all Customer Data, including any data, information or other content forming part thereof, as necessary to provide the Solution, including making the Customer Data accessible to Authorized Users using the Solution; and; (ii) use any Customer Data in any manner that a Customer directs.
(c) Customer Covenant. Customer will not, and will cause each Authorized User to not, directly or indirectly interfere with or prevent (or attempt to interfere with or prevent) the exercise by Feroot or its successors and permitted assigns of any of the rights and licenses granted pursuant to Section 3(b).
(d) Derivative Works. Subject to the terms and conditions of this Agreement, Customer grants to Feroot a non-exclusive, royalty-free, irrevocable, fully paid-up, perpetual, sub-licensable, transferrable and worldwide right and license to aggregate and anonymize Customer Data (“De-Identified Data”). Feroot may use the De-Identified Data in respect to Feroot’s business, including to modify, update, perform, create compilations, aggregations, enhancements, adaptations, translations or derivative works from or on the basis of, process, develop, access, collect, store, use, sell, exploit, resell, distribute, provide, transfer and use all De-Identified Data (including any data, metadata, information or other content forming part thereof), including for the purposes of: (i) optimizing the Solution by improving performance, functionality and usability; (ii) developing general industry sector and statistical data and analyses; (iii) making projections and predicting trends; and (iv) re-selling and promoting such data, including through the development of marketing and sales collateral (collectively “Derivative Works”).
(e) Reservation of Rights. Feroot expressly reserves all rights, title, and interest in, and Customer will not acquire any rights, title or interest in: (i) the Solution (or any part thereof), (ii) any other materials or content provided by Feroot under this Agreement; (iii) the Derivative Works; and (iv) any and all Intellectual Property Rights in and to any of the foregoing, in each case, in any form or medium (subsections (i) through (iv) are collectively, the “Feroot Property”). All right, title and interest in the Feroot Property will remain with Feroot (or Feroot’s third party suppliers, as applicable). For greater certainty, any Feroot Property is licensed and not “sold” to Customer.

4. Free Trial.
Subject to acceptance of these Terms and Conditions, Customer may use the Solution for a 14 day trial period (the “Trial Period”), commencing on the date set out in the Order Form OR the day on which the Customer registered with Feroot, without charge, for evaluation purposes only. The Solution will automatically cease functioning at the end of the Trial Period unless terminated earlier or extended by Feroot, acting in its sole discretion, or Customer purchases a paid subscription for the Solution. At the end of the Trial Period, unless Customer purchases a subscription to the Solution, all Customer Data uploaded to the Solution will be deleted. WITHOUT LIMITING THE PROVISIONS IN THESE TERMS AND CONDITIONS, DURING THE TRIAL PERIOD AND TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW: (A) FEROOT WILL HAVE NO OBLIGATION WHATSOEVER TO PROVIDE THE SOLUTION TO CUSTOMER; AND (B) CUSTOMER WILL HAVE NO CLAIM OR REMEDY AGAINST FEROOT FOR LIABILITY ARISING FROM A FAILURE OF THE SOLUTION OR OTHERWISE DURING THE TRIAL PERIOD.

5. Internet Security Disclaimer; Limitation, Suspension, or Termination of Access
(a) Internet Security Disclaimer. Customer consents to Feroot’s collection, storage, use, and disclosure of Customer Data as contemplated hereunder, which will involve transmission over the Internet and over various networks, only part of which may be owned or operated by Feroot. Customer acknowledges and understands that Customer Data may be accessed by unauthorized persons when communicated across the Internet, network communications facilities or other electronic means. Feroot is not responsible for any Customer Data that is delayed, lost, destroyed, altered, intercepted or stored during the transmission of such data across network infrastructure not owned or operated by Feroot, including the Internet, third party websites or Customer’s or Authorized Users’ local networks. Customer agrees that Feroot is not in any way responsible for any interference with Customer’s or Authorized Users’ use of or access to the Solution or security breaches arising from or attributable to such network infrastructure and, to the fullest extent permitted by law, Customer waives any and all claims against Feroot in connection therewith.
(b) Limitation, Suspension or Termination of Access. In addition to any other rights of Feroot set out in this Agreement, Feroot reserves the right to suspend or terminate or limit (as determined in Feroot’s sole discretion) Customer’s access to or use of the Solution or any component thereof, without notice in order to: (i) prevent any actual or potential adverse impact on Feroot’s ability to deliver any services to its customers; (ii) prevent any actual or potential damage to, or misuse, abuse or degradation of the integrity of, the Solution, Feroot Property or Feroot’s systems; (iii) comply with any applicable laws, including any judicial or governmental request or order; or (iv) otherwise protect Feroot from actual or potential liability or harm to its reputation or business. Feroot will use commercially reasonable efforts to notify Customer of the reasons for such limitation, suspension or termination action as soon as reasonably practicable, but is not required to do so.

6. Customer ID; Customer Restrictions.
(a) Customer ID. Upon Customer’s request, but subject to any limitations associated with Customer’s Feroot account, Feroot will issue user identification and passwords or a direct access link (in each case, a “ID”) to Customer for each employee or representative that Customer wishes to have access to and use of the Solution (each, a “Authorized User”). Authorized Users may only access and use the Solution through their Authorized User ID. Customer is responsible for the compliance by Authorized Users with this Agreement, all fees and charges incurred by Authorized Users in connection with access to and use of the Solution, and any and all activity occurring under the Authorized User IDs associated with Authorized Users, including access to and use of the Solution. Customer will not allow Authorized Users to share their ID with any other person. Customer will promptly notify Feroot of any actual or suspected unauthorized use of the Solution. Feroot reserves the right to suspend, deactivate or replace any ID if it determines that the ID may have been used for an unauthorized purpose.
(b) Customer Restrictions. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any Authorized User, other person or entity to: (i) license, sublicense, sell, resell, transfer, assign, distribute, rent access to, grants any rights to, or otherwise commercially exploit or knowingly make available to any third party the Solution (or any part thereof) in any way; (ii) modify or make derivative works based upon the Solution (or any part thereof); (iii) create Internet “links” to the Solution or “frame” or “mirror” any part of the Solution on any other server or wireless or Internet-based device; (iv) decompile, disassemble, reverse engineer, or otherwise attempt to modify, adapt, or create derivative works of any software, technology, or work of authorship underlying, within, or related to the Solution (or any part thereof); (v) build or have built a product or solution using ideas, features, functions or graphics similar to the Solution, or any part thereof; (vi) interfere with or disrupt the integrity or performance of the Solution or the data contained therein; (vii) attempt to gain unauthorized access to the Solution or its related systems or networks; (viii) use or access the Solution in any manner other than as expressly permitted in the applicable user documentation provided by Feroot; (ix) copy any ideas, features, functions or graphics of the Solution (or any part thereof); or (x) allow Authorized User accounts to be shared or used by more than one individual Authorized User; (xi) use the Solution other than as permitted by this Agreement; or (xii) use the Solution to upload, collect, transmit, store, use, disclose or process, or ask Feroot to obtain from third parties or perform any of the above with respect to, any Customer Data: (A) that Customer or the applicable Authorized User does not have the lawful right to upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display; (B) in a manner that violates any applicable laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); (C) that is tortious, defamatory, obscene, or offensive, or that violates, or encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability; or (xiii) access the Solution for the purpose of building a similar or competitive product or service.
By using Solutions provided by Feroot including creating an account on the Feroot website you warrant that you have full authority from your company, legal entity, or a person to use Feroot Solutions to this Agreement. If you are acting or accepting this Agreement on behalf of another company, legal entity, or a person you represent and warrant that you have full authority to bind that company, legal entity, or a person to this Agreement.

7. Fees and Payment.
(a) Fees. Customer will pay to Feroot the applicable Fees and other amounts that become due and payable in accordance with the payment terms set out in this Agreement, including as set out in the Order Forms. Invoices shall be payable immediately upon receipt or in thirty (30) days from date of receipt of invoice if indicated
(b) No Set-Off and Late Payment. Customer may not withhold or “setoff” any amounts due under this Agreement. Feroot reserves the right to suspend Customer’s access to the Solution (or terminate this Agreement in accordance with Section 13(d)) until all past due amounts are paid in full. Any late payment will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less) per month or fraction thereof until fully paid.
(c) Fee Increases. The fees or rates set out in each Order Form will be subject to increase only by a mutual agreement in writing and upon Feroot providing written notice thereof to Customer at least 90 days prior to the effective date of such increase. For purposes of calculating the amount of any such increase, the prices paid by the Customer will be adjusted so that any discounts, subsidies or similar payments made by Customer are excluded.
(d) Certain Taxes. The Fees and other amounts quoted in this Agreement do not include, and Customer will pay, indemnify and hold Feroot harmless, from and against all local, state, provincial, federal or country sales, use, gross receipts, value-added, GST or HST, personal property or other taxes, and all applicable duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Feroot. Should Customer have any certificates which provide that no sales or other taxes apply to a specific transaction, then this certificate must be provided by Customer to Feroot in advance of any billings.

8. Confidential Information.
(a) Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or “proprietary” or that a reasonable person would understand to be confidential or proprietary; provided that Discloser’s Confidential Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing: (A) the terms and conditions of this Agreement and all Feroot Property (including any part thereof), whether marked as “confidential” or “proprietary” or not, will be Feroot Confidential Information; and (B) all De-Identified Data, including any data, information or other content forming part thereof, whether marked as “confidential” or “proprietary” or not, will not be Customer Confidential Information and Customer will not have any rights thereto.
(b) Confidentiality Covenant. Recipient hereby agrees that during the Term and for three years thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person or entity, except to its own personnel, Affiliates or contractors having a “need to know”, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligation under this Section if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure (but in no event using less than a reasonable degree of care). Upon the Discloser’s written request and regardless of whether a dispute may exist, Recipient will return or destroy (as instructed by Discloser) all Confidential Information of Discloser in its possession or control and cease all further use thereof. Notwithstanding the foregoing, Feroot may retain a copy of any Confidential Information of Customer for the sole purpose of and to the extent necessary for it to comply with applicable and legal, regulatory, or reasonable internal back-up or archival practices or policies.
(c) Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, contractors, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to Recipient’s business; or (iii) to potential assignees, acquirers or successors of Recipient if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Recipient.

9. Customer Data.
(a) Continuity and Security. Except to the extent it is expressly part of the Solution, set out in this Agreement, or as otherwise expressly agreed, Customer acknowledges that Feroot is not responsible for Customer Data and that Customer is solely responsible for: (i) managing, editing, uploading and updating Customer Data onto the Solution; and (ii) ensuring that the Customer Data is accurate, timely and complete and secure except to the extent set out in our Privacy Policy and the DPA. Feroot will implement the physical, technical, administrative and organizational measures to safeguard Customer Data under Feroot’s custody to the extent set out in the Privacy Policy and, if applicable, the DPA.
(b) Covenants, Representations and Warranties. Customer covenants, represents and warrants to Feroot that the Customer’s provision of Customer Data to the best of Customer’s knowledge: (i) does not violate applicable laws, including privacy laws and regulations; (ii) if Customer Data contains personally identifiable information or any other information that is subject to applicable laws concerning the protection of personal information, the Customer Data has been collected for use as contemplated herein in full compliance with such laws (including obtaining the express consent of the person identified therein): (iii) is not illegal; (iv) will not interfere with or disrupt the integrity or performance of the Solution or the other data contained therein; and (v) is free of any virus, trojan horses or computer software code, time bombs, harmful and malicious data, or other undocumented programs which may inhibit use of the Solution, routines or devices designed to disable, damage, impair, erase, deactivate, or electronically repossess software or data.
(c) Ownership of Customer Data. Customer covenants, represents and warrants to Feroot that it is the sole owner or otherwise has the right to use or upload any Customer Data. Customer will maintain ownership of any Customer Data.
(d) Deletion or Suspension. Without limitation, Feroot may immediately: (i) delete any Customer Data, or part thereof, that is in breach of any of the foregoing covenants, representations and warranties; or (ii) remove or suspend any Authorized User account that is responsible, or is reasonably suspected by Feroot of being responsible, for a breach of any of the foregoing covenants, representations or warranties, in each case without incurring any liability whatsoever to Customer.
(e) Storage and Destruction of Customer Data. Unless otherwise specified in an Order Form, all Customer Data will be stored in the Solution by Feroot for the period of time identified in Feroot’s privacy policy (the “Archival Term”). Feroot, at its option, will either return such Customer Data to Customer, including, to the extent applicable in accordance with the DPA, or destroy such Customer Data when the applicable Archival Term expires or as required by applicable law and regulation, if earlier. Feroot will continue to be responsible for any obligations applicable to such Customer Data set forth in this Agreement for so long as Feroot maintains such Customer Data.

10. Personal Information or Data.
How Feroot uses and processes personal information that you upload or allow Customer’s clients to uploaded to the Solution is defined in and governed by our privacy policy that is accessible on our website, as updated from time to time by us (the “Privacy Policy”) https://www.feroot.com/privacy-policy
If Personal Data is governed by E.U. law then the terms of our data protection addendum accessible on the Feroot website will also apply (the “DPA”) https://www.feroot.com/data-processing-addendum. Both the Privacy Policy and DPA, to the extent applicable to Personal Data, form a part of this Agreement. Your acceptance of the Agreement and use of the Solution will be confirmation of your agreement to the Privacy Policy and, if applicable, the DPA. IT IS CUSTOMER’S RESPONSIBILITY TO ENSURE THAT CUSTOMER COMPLIES WITH ALL PRIVACY LAWS AND REGULATIONS APPLICABLE TO CUSTOMER AT ALL TIMES, INCLUDING THE EU GDPR (AS DEFINED IN THE DPA), NOTWITHSTANDING CUSTOMER’S USE OF THE SOLUTION. In particular it is the Customer’s responsibility (as data controller) to ensure that it responds to data subject requests in a compliant way in compliance with such privacy laws and regulations.

11. Warranty; Disclaimer; Indemnity.
(a) Customer Warranty. Customer represents, warrants and covenants to, and covenants with Feroot that Customer has provided and obtained all Required Disclosures and Consents.
(b) Mutual Representations, Warranties & Covenants. Each party represents, warrants, and covenants to the other that it has full corporate power and authority to enter into the Agreement and to carry out the transactions contemplated under the Agreement.
(c) Warranty Disclaimer. EXCEPT AS SPECIFICALLY PROVIDED IN THIS SECTION, THE SOLUTION (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY FEROOT TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND. FEROOT HEREBY DISCLAIMS TO THE MAXIMUM EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTIBLE QUALITY, COMPATIBILITY, TITLE, NONINFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. FEROOT DOES NOT WARRANT THAT THE SOLUTION (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, FEROOT EXPRESSLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SOLUTION (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

(d) Indemnity. Customer will defend, indemnify and hold harmless Feroot and its Affiliates, and their respective employees, officers, directors, agents, contractors, successors and assigns, from and against any and all liability (including damages, recoveries, expenses, deficiencies, interest, penalties and reasonably attorney’s fees) directly or indirectly arising from or in connection with, or relating to: (i) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (ii) use of the Solution (or any part thereof) by Customer or any Authorized User in violation of the terms of this Agreement; or (iii) misrepresentation, criminal behaviour or gross negligence on the part of Customer or any Authorized User; (iv) Customer’s breach of applicable law, including any privacy laws or regulations. Customer will fully cooperate with Feroot in the defense of any claim defended by Customer pursuant to its indemnification obligations hereunder and will not settle any such claim without the prior written consent of Feroot.
(ii) Feroot will defend, indemnify and hold harmless Customer and its Affiliates, and their respective employees, officers, directors, agents, contractors, successors and assigns, from and against any and all liability (including damages, recoveries, expenses, deficiencies, interest, penalties and reasonably attorney’s fees) directly or indirectly arising from or in connection with, or relating to: (i) Feroot’s breach of any of Feroot’s obligations, representations or warranties under this Agreement; (ii) misrepresentation, criminal behaviour or gross negligence on the part of Feroot; or (iii) Feroot’s breach of applicable law, including any privacy laws or regulations. Feroot will fully cooperate with Customer in the defense of any claim defended by Feroot pursuant to its indemnification obligations hereunder and will not settle any such claim without the prior written consent of Customer.
(e). (iii) Feroot will defend, indemnify and hold harmless Customer and its Affiliates, and their respective employees, officers, directors, agents, contractors, successors and assigns, from and against any and all liability (including damages, recoveries, expenses, deficiencies, interest, penalties and reasonably attorney’s fees) directly or indirectly arising from or in connection with, or relating to any from any claim, action, suit or proceeding against Customer by a third party, (an “Action”) alleging or claiming that the Solution infringes any Intellectual Property Right and will pay all costs and damages incurred and finally awarded in any such Action, provided that Feroot is notified promptly in writing of the Action and, at Feroot’s request and expense, Feroot is given control of such Action. Should use of the Solution be enjoined, or in Feroot’s opinion is likely to be enjoined, as a result of such Action, then Feroot shall at its cost and within a reasonable period of time, using commercially reasonable efforts to employ the remedy least detrimental to Customer’s business: (a) obtain for Customer the right to continue to use the Solution; (b) modify the Solution to render it non-infringing but of equivalent functionality to the original Solution; or (c) replace the Solution with a non-infringing product of equivalent functionality to the original Solution. Nothwithstanding any other term or provision of this Agreement, Feroot’s obliations and liability pursuant to this Section 11(e)(iii) shall not be subject to the limitations of liability set forth in Section 12 of this Agreement.

12. Limitation of Liability.
The Parties acknowledge that the following provisions have been negotiated by the Parties and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) AMOUNT. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED AN AMOUNT EQUIVALENT TO THE TOTAL AMOUNT OF FEES RECEIVED BY FEROOT UNDER THIS AGREEMENT DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL FEROOT’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) Indirect and Consequential Losses. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL, (III) BUSINESS INTERRUPTION EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY (INCLUDING ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES), OR (IV) PERSONAL, TANGIBLE, REAL OR INTANGIBLE PROPERTY DAMAGE; ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.

13. Term and Termination.
(a) Agreement Term. This Agreement will commence on the Effective Date and continue to be in effect until the date that is set out on the Order Form from the Effective Date, unless otherwise agreed to by the Parties in writing (the “Initial Term”).
(b) Agreement Renewal Terms. This Agreement will automatically renew on the terms and conditions contained herein (except as to price), for up to the number of additional periods set out in each Order Form (each, a “Renewal Term” and together with the Initial Term, the “Term”), unless either Party provides at least 30 days’ written notice to the other Party prior to the date of expiry of the Initial Term or any Renewal Term.
(c) Order Form Term. The term for each Order Form (including any renewal terms) will be set out in the applicable Order Form.
(d) Termination For Non-Payment. Feroot may terminate the Agreement if Customer fails to pay to Feroot any Fees due within thirty (30) days after the due date, provided that Feroot provides Customer with written notice of payment delinquency at least ten (10) business days prior to the effective date of termination and Customer fails to render payment within such time frame.
(e) Mutual Termination Rights. Without limiting either Parties’ rights or remedies under this Agreement, in whole or in part, either Party may terminate this Agreement, effective upon written notice to the other Party, due to the other Party’s failure to cure a material breach of this Agreement within sixty (60) days after receipt of notice of such breach from the non-breaching Party. Feroot may terminate this Agreement effective upon delivery of written notice to the Customer if Customer is in breach of Section 10 of this Agreement.
(f) Termination for Insolvency. Feroot may terminate this Agreement, effective upon written notice to the Customer, if Customer: (i) ceases conducting business in the normal course; (ii) is insolvent or files for or is placed in bankruptcy from which it does not emerge within sixty (60) days of filing; (iii) makes any voluntary arrangement with its creditors for the general settlement of its debts or becomes subject to an administration order; or (iv) has an order made against it, or passes a resolution, for its winding-up or has a receiver or similar officer appointed over all or substantially all of its property or assets.
(g) No Refund or Proration of Fees. Feroot will not refund or prorate any Fees paid or payable hereunder if this Agreement is terminated for any reason unless Customer terminates this Agreement as a result of Feroot’s material breach if such breach is not cured within 15 days of notice of such default by Customer.
(h) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3(d) (Derivative Works);, Section 3(e) (Reservation of Rights), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9(e) (Storage and Destruction of Customer Data) Section 11 (Warranty Disclaimer; Disclaimer; Indemnity), Section 12 (Limitation of Liabilities), Section 13(h) (No Refund or Proration of Fees), Section 13(i) (Survival), and Section 14 (General Provisions).
(i) Extended Term of Order Forms. If the term of an Order Form extends past the termination or expiry of the Term, then the terms and conditions of this Agreement that apply to or govern such Order Form will survive the termination or expiry of the Term. For greater certainty, no new Order Form under this Agreement may be entered into between the Parties after the termination or expiry of the Term.

14. General Provisions.
(a) Feedback. Customer may notify Feroot of any feedback or suggestions from Customer or Authorized Users relating to the Solution, including any suggestions for modifications or enhancements to the Solution. Customer hereby irrevocably assigns and transfers to Feroot all worldwide right, title and interest, and all Intellectual Property Rights, in and to all such feedback or suggestions. Customer will procure the waiver of any moral rights in and to such feedback or suggestions on request from Feroot.
(b) Notices. Unless expressly stated otherwise in this Agreement, any demand, notice, consent, authorization or other communication required or permitted to be given in connection with this Agreement must be given in writing and will be given by email, personal delivery, or sent by prepaid registered mail or by overnight courier, in each case addressed to the recipient set out in the “Customer” or “Feroot”, as applicable, section of the chart on the Order Form, or to such other email, address, individual or facsimile number as may be designated by notice given by either Party to the other Party in the same manner.
(c) Assignment. The Customer may not assign or transfer this Agreement or any of its rights or obligations hereunder, without the prior written consent of Feroot except that Customer may assign this Agreement in the event of a merger, acquisition or other change of control. Any other attempt by Customer without such consent to assign, transfer or delegate any rights or obligations under this Agreement will be void. Subject to the foregoing, the provisions of this Agreement will inure to the benefit of, and be binding upon, the successors and permitted assigns of the Parties. Feroot may assign or transfer this Agreement, provided that it provides written notice of any such assignment to Customer within thirty (30) days of such assignment.
(d) Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of Ontario, Canada, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in the County of Santa Clara, California, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(e) Right to Reference as a Customer. Customer agrees that Feroot may use Customer’s name and logo in listings of current customers and presentations to or marketing materials for prospective investors or business counterparties and on Feroot’s website of referenceable customers. Post implementation Customer may provide a testimonial and Subject to Customer’s prior written consent a sign-off on a website press release to describe the successful implementation and relationship between Customer and Feroot.
(f) Construction. Except as otherwise provided herein, the Parties rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. Any rule of construction to the effect that any ambiguity in this Agreement will be resolved against the drafting party will not be applied to the interpretation of this Agreement.
(g) Force Majeure. Neither Party will be liable for delays caused by any event beyond its reasonable control, except non-payment of amounts due under this Agreement will not be excused by this provision.
(h) Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be automatically conformed to the minimum requirements of law and all other provisions of this Agreement will remain in full force and effect.
(i) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(j) Independent Contractors. Customer’s relationship to Feroot is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Feroot.
(k) Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes all other communications, whether written or oral.
(l) Electronic Execution. This Agreement may be executed in one or more counterparts (including electronically), each of which will be deemed an original and all of which will be taken together and deemed to be one instrument.
(m) Amendments. No amendment, supplement, or modification of this Agreement, and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
(n) Further Assurance. The Parties will, with reasonable diligence, do all things and provide all such reasonable assurances as may be required to consummate the transactions contemplated by this Agreement, and each Party will provide such further documents or instruments required by any other Party as may be reasonably necessary or desirable to effect the purpose of this Agreement and carry out its provisions.
(o) Order of Priority. In the event of any conflict or inconsistency between the provisions of any of the following documents, then unless the Parties expressly agree otherwise, the following descending order of priority will apply, to the extent of such conflict or inconsistency: (a) this Agreement (including its Schedules), with equal priority; and (b) the applicable Order Forms.
(p) English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.