Terms of Service

Version 2.0

Last Updated November 24, 2021

1. Preamble.

   • These Provision Terms of Service sets forth the terms and conditions that govern the provision and use of: (a) the Provision Platform; (b) any additional services made available by Provision. The Parties have separately entered into the Provision Subscription Form. Together, (a) these Terms of Service; (b) the Subscription Form; (c) if applicable, the Terms of Implementation at https://provision.io/legal/implementation; and (d) any SOWs prepared and executed in accordance with the terms of this Agreement, all as amended from time to time. The Agreement is entered into as of the effective date indicated on the Subscription Form (the "Effective Date").

   • BY USING THE PROVISION SOLUTION, CLIENT ACKNOWLEDGES THAT IT HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 4.5. IF CLIENT DOES NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, CLIENT WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE PROVISION SOLUTION. CLIENT REPRESENTS AND WARRANTS TO PROVISION THAT CLIENT HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CLIENT IS USING THE PROVISION SOLUTION ON BEHALF OF ANOTHER PERSON, CLIENT HEREBY REPRESENTS AND WARRANTS TO PROVISION THAT CLIENT HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.

2. Definitions.

   • General Definitions

     Agreement	The Parties have separately entered into the Provision Subscription Form. The “Agreement” consists of: (a) these Terms of Service; (b) the Subscription Form; and (c) if applicable, the Terms of Implementation at https://provision.io/legal/implementation and any SOWS prepared and executed thereunder, all as amended from time to time.
     Authorized User	An "Authorized User" includes any individual permitted by the Client to access or use Provision's Products.
     Client Data	"Client Data" includes the Client's configuration of Provision's Products, such as any form and report templates; any data uploaded into the Client's Workspace on an ongoing basis; usage and metadata such as interaction logs, location, and device information; any permitted cookie information; third-party data from permitted integrations or API; and any other data generated or provided in connection to the Agreement.
     Implementation Services	"Implementation Services" means the creation of the Workspace; the analysis, digitization, and validation of processes and documents; and the initial training provided for the Products.
     Form	A "Form" is a unique digital record within the Products used to capture Client data from Authorized Users.
     License	A "License" grants access to and use of the Products for a single Authorized User within the Client organization.
     Products	"Products" means the Provision Platform, any documentation made available by Provision to Client and, unless otherwise agreed in the Terms of Implementation, any deliverables identified as such in the Terms of Implementation and any related SOW, all bug fixes, patches, work-arounds, updates, upgrades, enhancements, modifications, and other new versions of the Provision Platform that Provision makes available to Client.
     Provision Platform	Provision's cloud based software as a service solution as described in the Subscription Form.
     Provision Solution	The Products and Services together comprise the Provision Solution.
     Services	The applicable professional or other services set out in the Terms of Implementation, together, with any support services provided by Provision.
     Subscription	A "Subscription" is the purchase of Licenses for Authorized Users within the Client organization.
     Usage Caps	The "Usage Caps" are maximum restrictions applied to the Workspace, which may include but not be limited to the quantity of Authorized Users, annual form submissions, organizational units, or total data storage.
     Workspace	A "Workspace" is a unique domain for the Products where a related group of Authorized Users may access the Products on behalf of the Client.

   • Parties

     Client	Represents the company or other legal entity agreeing to the Agreement who may purchase a Subscription to access or use the Provision Solution.
     Provision	Represents Provision Analytics Inc., a registered corporation in Calgary, Alberta, Canada, who may provide the Implementation Services.

     Collectively, referred to as the "Parties," or independently, as a "Party".

   • Addenda and related documents

     Acceptable Use Policy	Sets out the general terms and conditions of an individual Authorized User's access to or use of the Provision Solution.
     Statement of Work ("SOW")	Specifies the scope and Fees of Implementation Services provided by Provision for the Client, and any related restrictions.
     Subscription Form	Specifies the type, scope, Fees, and term of the Client's Subscription to the Provision Solution.
     Terms of Implementation	Sets out the general terms and conditions for Implementation Services provided by Provision to the Client.

3. General; Addenda.

   • General. This Agreement sets forth the terms and conditions under which Provision makes available the Provision Solution. These Terms of Service does not, absent the selection of Implementation Services on the Subscription Form, create any business relationship or impose any obligation on Provision to provide the Implementation Services.

   • Addenda. Provision and Client will identify the Implementation Services subject to this Agreement in the Subscription Form. If the Implementation Services is selected in the Subscription Form, the Terms of Implementation available [https://provision.io/legal/implementation] is hereby deemed to be incorporated by reference into the terms and conditions of this Agreement. Provided Provision and Client execute the required SOW, and subject to the terms and conditions of this Agreement and the Terms of Implementation, Provision will provide Client with the Implementation Services as set out in the applicable SOW.

   • Subcontracting. Provision may engage third parties to assist it in providing the Provision Solution or any part thereof. Provision will remain responsible for the performance of the Provision Solution by such subcontractors in accordance with this Agreement.

4. Provision Platform.

   • Access. Subject to Client's and its Authorized Users' compliance with the terms and conditions of this Agreement, Provision will make the Provision Platform available to Client and Authorized Users on the terms and conditions set out in this Agreement during the Term.

   • Suspension of Access; Modifications. Provision may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under the Agreement: (a) suspend Client's access to or use of the Provision Platform or any component thereof: (i) for scheduled maintenance; (ii) due to a Force Majeure; (iii) if Provision believes in good faith that Client or an Authorized User has violated any provision of this Agreement; (iv) to address any emergency concerns; (v) for non-payment of any Fees; (vi) if required to do so by any government or regulatory body, or as a result of changes in applicable law; or (vii) for any other reason as provided in the Agreement; and (b) to make any modifications, improvements, customizations, updates and enhancements to the Provision Platform.

   • Service Levels. Provision will use commercially reasonable efforts to make the Provision Platform available on a 24 x 7 x 365 basis with an objective of achieving 99.0% availability for each calendar month, excluding downtime or suspension of the Provision Platform for scheduled maintenance, downtime of third party service providers of Provision, or due to a Force Majeure.

   • Support. Provision will use commercially reasonable efforts to Provision may provide the Client with support to resolve general issues relating to Authorized Users' access to or use of the Provision Solution. This support includes resources and documentation that Provision makes available to the Client through its webpage, knowledge hub, and other distribution channels. If a matter is unresolved after reviewing such documentation, the Client may contact Provision by email to support@provision.io for further support.

   • Amendments. No amendment, supplement, modification, waiver, or termination of the Agreement and, unless otherwise expressly specified in the Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, PROVISION MAY UNILATERALLY AMEND THE AGREEMENT, INCLUDING THESE TERMS OF SERVICE AND THE TERMS OF IMPLEMENTATION, IN WHOLE OR IN PART (EACH, AN "AMENDMENT"), BY GIVING CUSTOMER 90 DAYS' PRIOR NOTICE OF SUCH AMENDMENT BY EMAIL AND BY POSTING NOTICE OF SUCH AMENDMENT ON THE PROVISION PLATFORM. UNLESS OTHERWISE INDICATED BY PROVISION, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE INDICATED ON THE NOTICE.

5. Implementation Services. During the Term, Client may order, and subject to Client's payment to Provision of all applicable Fees, Provision will provide, the professional services and deliverables specified in the Terms of Implementation in accordance with the terms set out therein. In the event that Client desires Provision to provide training of any Product for its employees, agents, or representatives other than training outlined in the Terms of Implementation, Client will enter into a separate SOW under the Terms of Implementation governing such additional training services and setting out any corresponding Fees.

6. Third Party Content, Websites or Services. The Provision Solution may provide links or access to third party content, websites, services or systems. Provision does not endorse any third party content, websites, services, or systems, or guarantee their quality, accuracy, reliability, completeness, currency, timeliness, non-infringement, merchantability, or fitness for any purpose. Third party content, websites, services, or systems are not under the control of Provision, and if Client chooses to access any such content, websites, services, or systems Client does so entirely at its own risk. Client acknowledges that it may be required by to accept terms and conditions applicable to third party content, websites, services, or systems, that such terms may supersede the terms in this Agreement with respect to the use of such third party content, websites, services or systems, and Client agrees to accept and comply with any such terms and conditions.

7. Data and Proprietary Rights.

   • Proprietary Rights. The Provision Solution contains the proprietary and trade secret information of Provision. Except for the limited rights or licenses that Provision grants to Client under the Terms of Implementation, Provision or its licensors retain all rights, title and interest including all intellectual property rights in and to: (i) the Provision Solution; (ii) anything used, developed or delivered by or on behalf of Provision under this Agreement; and (iii) any modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations ("Modifications") to the foregoing. Nothing in this Agreement will be construed to grant Client any right to obtain or use source code.

   • Client Data. Client retains all rights, title and interest including all intellectual property rights in and to any Client Data, including any Personal Information. Client grants to Provision a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to: (a) transmit Client Data through the Provision Platform; and (b) access, collect, use, process, store, disclose, and transmit Client Data to: (i) provide the Provision Solution; (ii) improve and enhance the Provision Solution and its other offerings; and (iii) produce or generate data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the "Aggregated Data"). Provision may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Client of any kind. Client Confidential Information includes Client Data.

   • Provision Metadata. Provision or its licensors retain all rights, title and interest including all intellectual property rights in and to the metadata that is generated by the Provision Solution resulting from the processing of the Client Data and that results from the ordinary course of the operation of the Provision Solution ("Provision Metadata"). Provision's Confidential Information includes Provision Metadata.

8. Client Responsibilities.

   • Regulatory Requirements. Client understands that it is responsible for all regulatory and food safety obligations. Client represents and warrants that it will comply with all relevant professional obligations and regulations, including those related to recalls, food and beverage quality, safety, and providing all relevant information to the applicable governmental or regulatory authorities.

   • Prohibited Uses. Client will not, and will not permit others (including Authorized Users) to:

     1. sub-license, sell, rent, lend, lease or distribute the Provision Platform or any intellectual property rights therein, or otherwise make the Provision Platform available to others other than Authorized Users;

     2. use the Provision Platform to permit timesharing, service bureau use or commercially exploit the Provision Platform;

     3. use or access the Provision Platform:

        1. in a manner that threatens the security or functionality of the Provision Platform; or

        2. for any purpose or in any manner not expressly permitted in this Agreement;

     4. use the Provision Platform to create, collect, transmit, store, use or process any Client Data:

        1. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

        2. that Client does not have the lawful right to create, collect, transmit, store, use or process; or

        3. that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);

     5. modify, reverse engineer, decompile or disassemble the Provision Platform;

     6. remove or obscure any proprietary notices or labels on the Provision Platform or on other documentation provided by Provision including brand, copyright, trademark and patent or patent pending notices;

     7. access or use the Provision Platform for the purpose of building a similar or competitive product or service; or

     8. perform any vulnerability, penetration or similar testing of the Provision Platform.

   • Permitted Use. Client may access and use the Provision Platform solely for Client's internal business purposes.

9. Licenses and Authorized Users.

   • Issuance of Accounts. Upon Client's request, Provision will: (a) issue one or more Licenses to Client for use by Client and all individuals who are employees or contractors of Client that Client wishes to have access to and use of the Provision Solution (each, an "Authorized User"); and (b) designate one or more Licenses as administrator accounts that provides Client with the capability to administer, maintain, and manage certain features of the Provision Solution through the Provision Platform.

   • Authorized Users. Client will ensure that Authorized Users only use the Provision Solution through the License and in accordance with the Acceptable Use Policy. Client will not allow any Authorized User to share the License with any other person. Client will promptly notify Provision of any actual or suspected unauthorized use of the Provision Solution or violations of the Acceptable Use Policy. Provision reserves the right to suspend, deactivate, or replace the License if it determines that the License may have been used for an unauthorized purpose. Client will ensure that all individual users of the Provision Solution, including Authorized Users, are contractually bound to terms and conditions with Client that are no less restrictive or protective of Provision's rights than those set forth in this Agreement.

10. Fees.

    • Fees. Client agrees that the rights granted under this Agreement, including any license or access provided to the Provision Solution, are conditioned on Client's payment of all required fees for such Provision Solution, whether upfront, one-time, recurring, or a combination of the foregoing, as specified on the Subscription Form or in the applicable Addendum ("Fees"). In consideration for the rights granted to Client and the performance of Provision's obligations under this Agreement (including, for greater certainty, each Addendum), Client will pay Provision the Fees starting on the date the Client first accesses the Provision Platform.

    • Usage based billing. If Client's use of the Provision Solution exceeds the service capacity or Usage Caps set forth on an Subscription Form or otherwise requires the payment of additional Fees (pursuant to an Addendum or the terms of this Agreement), Client will be billed for such usage and Client will pay the additional Fees in accordance with this Agreement.

    • Changes to the Fees. Fees for the Provision Solution are listed on the Subscription Form and will not increase during the first twelve (12) months of the term of the Agreement. Thereafter, such Fees may increase from the Fees of the immediately preceding year by no more than the greater of: (i) 3.0%; or (ii) the average increase over the prior year in the Consumer Price Index (CPI) – All Items. Provision reserves the right to change the Fees and institute new charges upon providing not less than 90 days prior written notice to Client.

    • Disputed Invoices or Charges. If Client believes Provision has charged or invoiced Client incorrectly, Client will contact Provision no later than 30 days after receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Client will pay any undisputed amounts in accordance with the payment terms herein, and the parties will discuss the disputed amounts in good faith in order to resolve the dispute.

    • Payment. Unless otherwise noted on an Subscription Form or an Addendum, all Fees are identified in US dollars and are payable in advance. All Fees under this Agreement are due upon the presentation of a Provision invoice. Client's payment is not subject to any setoff claims or rights of offset of any kind, including inactive use, or where access to or use of the Provision Solution is prevented for any reason, or Client has failed to install or use the Product or to provide access for applicable Services. Provision reserves the right to take any and all appropriate action if Client fails to pay as required in this Agreement, which may include: (a) prevention of use of the Provision Solution by any party, including the ability to purchase additional seats, capacity, or modules; (b) withholding of the Provision Solution or maintenance until Client has paid in full amounts owed to Provision; and (c) charging a late fee of 1% per month (or less, as per the maximum amount allowed by applicable law) for all past due amounts. Client agrees to pay and reimburse Provision for all such amounts and Fees.

    • Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes (collectively "Taxes"). Client will be responsible for and pay all applicable Taxes, 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 Provision. Notwithstanding anything to the contrary in this Agreement, if any amounts (including any Taxes) are required to be withheld by Client from any amount otherwise payable by Client to or for the benefit of Provision under this Agreement, Client will: (a) pay an additional amount such that the net amount actually received by Provision will, after all such withholdings (including any withholdings to be made in respect of any additional amount payable pursuant to this sentence), equal the full amount of the payment then due; (b) pay, or cause to be paid, to the relevant taxation authority the full amount of such withholdings (including the full amount of any withholdings in respect of any additional payment required to be paid pursuant to this sentence) in accordance with applicable law; and (c) furnish Provision as soon as practicable (and, in any event, within 30 days) with an official receipt (or a certified copy thereof) or such other documentation as is reasonably acceptable to Provision evidencing payment of such withholdings to the relevant taxation authority. If Client is a tax-exempt entity or claims exemption from any Taxes hereunder, Client will provide a certificate of exemption upon agreement to this Agreement and, after receipt of valid evidence of exemption, Provision will not charge Client any Taxes from which Client is exempt.

11. Personal Information.

    • Privacy Statement. Provision's collection, use, storage, process, disclosure and deletion of information about an identifiable individual ("Personal Information") provided by Client under this Agreement is governed by applicable privacy and data protection laws.

    • Personal Information. Client represents, warrants and covenants to Provision that Client will only provide Provision with Personal Information in respect of which Client has provided all notices and disclosures, obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Provision to provide the Provision Solution, including with respect to the collection, storage, access, use, disclosure, processing and transmission of Provision, including by or to Provision and to or from all applicable third parties.

12. Representations and Warranties; Disclaimer.

    • Mutual Representations and Warranties.

      Each Party represents, warrants, and covenants that:

      1. it has full power and all necessary rights to enter into this Agreement; and

      2. it will carry out its obligations under this Agreement in compliance with applicable laws.

    • Disclaimer.

      1. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, PROVISION DOES NOT WARRANT THAT THE PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PRODUCTS OR SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PRODUCTS AND SERVICES (AND ANY PART THEREOF) ARE PROVIDED "AS IS" AND "AS AVAILABLE". PROVISION MAKES NO WARRANTIES UNDER THIS AGREEMENT WITH RESPECT TO ANY THIRD PARTY SOFTWARE, HARDWARE OR OTHER PRODUCTS EMBEDDED IN OR INCLUDED WITH THE PRODUCTS OR FURNISHED TO CLIENT BY PROVISION.

      2. TO THE EXTENT PERMITTED BY APPLICABLE LAW, PROVISION HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL, OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, 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. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, PROVISION EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CLIENT IN CONNECTION WITH CLIENT'S USE OF THE PRODUCTS (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CLIENT FOR ANY PURPOSE WHATSOEVER.

      3. CLIENT UNDERSTANDS THAT THE PROVISION PLATFORM IS PROVIDED "AS IS" AND "WHERE IS". PROVISION MAKES NO WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE PROVISION PLATFORM. CLIENT REMAINS RESPONSIBLE FOR ALL REGULATORY COMPLIANCE, FOOD SAFETY, AND REPORTING OBLIGATIONS.

      4. THE AVAILABILITY OF THE PROVISION PLATFORM DOES NOT IMPLY PROVISION'S ENDORSEMENT OR APPROVAL OF ANY CLIENT DATA, FOOD SAFETY PROCEDURES, OR REPORTS. YOU ACKNOWLEDGE AND AGREE THAT PROVISION IS ACTING SOLELY AS AN INTERMEDIARY SERVICE PROVIDER AND DOES NOT REVIEW OR CONDUCT ANY DILIGENCE ON CLIENT DATA.

    • Client Responsibilities. Unless otherwise agreed to in a SOW, Client is solely responsible for: (a) purchasing and obtaining from third parties, and for maintaining during the Term, all applicable licenses and consents for third party technology that are needed to use the Provision Solution (unless provided by Provision pursuant to this Agreement and paid for by Client to Provision); (b) procuring, updating, and configuring all equipment, software, and systems used with the Provision Solution in accordance with the technical specifications provided by Provision; and (c) ensuring that Authorized Users use the Provision Solution in compliance with this Agreement.

13. Indemnities.

    • Provision Indemnities.

      1. Provision will defend, indemnify and hold harmless Client, and its officers, directors, employees and agents (each, a "Client Indemnitee") from and against any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers ("Losses") incurred by Client Indemnitees arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an "Action") by a third party (other than affiliate of a Client Indemnitee) that arise from or relate to any allegation that the Provision Solution infringes any third-party's intellectual property rights in Canada. Section 13.1(a) sets forth Provision's sole liability to, and Client Indemnitees exclusive remedy against Provision for any third party claim as described in this Section.

      2. If the Provision Solution is, or in Provision's opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party intellectual property right, or if Client's use of any portion of the Provision Solution is enjoined or threatened to be enjoined, Provision may, at its option and sole cost and expense:

         1. obtain the right for Client to continue to use the affected portion of the Provision Solution materially as contemplated by this Agreement;

         2. modify or replace the Provision Solution, in whole or in part, to seek to make the Provision Solution (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Provision Solution under this Agreement; or

         3. if Provision determines that neither of the foregoing two options are reasonably available, by written notice to Client, Provision may, in its sole discretion, terminate this Agreement and require Client to immediately cease all use of the Provision Solution or part or feature thereof.

      3. THE FOREGOING IS IN LIEU OF ANY WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

    • Limitations of Indemnity. Provision's obligations under Section 13.1 do not apply to any claims, damages or liabilities arising out of or relating to any of the following ("Excluded Claims"): (a) any product or component thereof that is not supplied by Provision to Client under this Agreement; (b) the combination of any Product with any other software, products, equipment, component, process or material in a manner not authorized in the documentation for such Product; (c) any modification to the Product (unless made by Provision) if the alleged infringement arises from such modification; (d) use of the Product in a manner not permitted by or in breach of this Agreement; (e) failure to use replacement or modified Product that provides substantially similar functionality as the original Product if the replacement or modified Product would have rendered the Product non-infringing; and (f) Provision's compliance with Client's instructions, specifications or requirements. No indemnification for any third party products supplied by Provision is provided under this Agreement unless and to the extent such indemnification is provided to Client under the terms of Provision's agreement with the third party.

    • Client Indemnities. Client will defend, indemnify and hold harmless Provision, and its officers, directors, employees and agents (each, a "Provision Indemnitee") from and against any and all Losses incurred by Provision Indemnitees arising out of or relating to any Action by a third party (other than an affiliate of a Provision Indemnitee) that arise from or relate to: (a) Client's breach of Section 8 (Client Responsibilities), 9.2 (Authorized Users), 11.2 (Personal Information), 12.1 (Mutual Representations and Warranties) 12.3 (Client Responsibilities), 15, (Confidentiality) or 20.5 (Export); (b) unauthorized use of the Provision Solution (or any part thereof) by Client or any Authorized User; (c) any breach of the Acceptable Use Policy by any Authorized User; or (d) Excluded Claims.

    • Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 13. The Party seeking indemnification (the "Indemnitee") will cooperate with the other Party (the "Indemnitor") at the Indemnitor's sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action and will employ counsel of its choice to handle and defend the same, at the Indemnitor's sole cost and expense. The Indemnitee's failure to perform any obligations under this Section 13.4 will not relieve the Indemnitor of its indemnity obligations under this Section 13, except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

14. Limitation of Liability. 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:

    • AMOUNT. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, 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, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CLIENT FOR THE Provision SOLUTION IN THE 12 MONTH PERIOD IMMEDIATELY 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.

    • TYPE. EXCEPT AS OTHERWISE PROVIDED IN SECTION 14.3, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (C) BUSINESS INTERRUPTION; (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE SERVICES OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

    • Exceptions. The exclusions and limitations in Sections 14.1 and 14.2 do not apply to: (a) either Party's obligations under Section 13 (Indemnification); or (b) Losses arising out of or relating to a Party's gross negligence or more culpable conduct, including any willful misconduct or intentionally wrongful acts.

15. Confidentiality.

    • Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the "Recipient", the Party disclosing such information will be the "Discloser", and "Confidential Information" means any and all information of Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including without limitation information concerning the Discloser's past, present or future customers, suppliers, technology or business, provided that Discloser's Confidential Information does not include, except with respect to Personal Information: (a) information already known or independently developed by the Recipient without access to Discloser's Confidential Information; (b) information that is publicly available through no wrongful act of the Recipient; or (c) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

    • Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not: (a) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a "need to know" and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (b) use Confidential Information of the Discloser except to exercise its rights or perform its obligations under this Agreement; or (c) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party's Confidential Information. Those precautions will be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

    • Exceptions to Confidentiality. Notwithstanding Section 15.2, the Recipient may disclose Discloser's Confidential Information: (a) 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, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (b) to its 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 in connection with the Party's business; or (c) in the case of Provision, to potential assignees, acquirers or successors of Provision 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 Provision.

    • Return of Destruction of Confidential Information. Upon the termination or expiration of this Agreement and all SOWs under this Agreement, the Recipient will promptly return to the Discloser or destroy all Confidential Information (excluding any Client Data, which will be governed by Section 17.3 below) in its possession or control within a reasonable amount of time in accordance with the Recipient's data destruction practices. Notwithstanding the foregoing, the Recipient may retain copies of the Confidential Information of the Discloser as required by applicable law, or to the extend such copies are electronically stored in accordance with the Recipient's standard backup procedures or record retention policies, so long as such Confidential Information remains subject to the confidentiality provisions set out in this Agreement. The Recipient will protect any Confidential Information of the Discloser in accordance with this Agreement so long as it retains such Confidential Information.

    • Publicity. The Client grants Provision the right to use the Client's company name and logo as a reference for marketing or promotional purposes on Provision's website and in other public or private communications with its existing or potential customers, subject to the Client's standard trademark usage guidelines as provided to Provision from time-to-time.

16. Term.

    • This Agreement will commence on the Effective Date and continue until the terms set out in all SOWs and the Subscription Form have expired, unless earlier terminated in accordance with this Agreement or extended pursuant to the written agreement of the parties ("Term").

    • Subscriptions to the Provision Platform commence on the date and continue for the period set out in the Subscription Form. The term of the Terms of Implementation will commence on the Effective Date continue for the Term of this Agreement, unless earlier terminated in accordance with Section 17. Subscriptions to the Provision Platform will automatically will automatically renew for successive periods equal to the duration of the initial Term each unless either Party provides the other with written notice of its intent not to renew at least 30 days before the end of the then-current Term.

    • The SOW Term will be defined in the applicable SOW under the Terms of Implementation. If the SOW Term extends past the termination or expiry of the Term, then the terms and conditions of this Agreement that apply to or govern the Terms of Implementation and applicable SOW will survive the termination or expiry of the Addendum Term or SOW Term. For greater certainty, no new SOW under this Agreement may be entered into between the parties after the termination or expiry of the Term.

17. Termination.

    • Termination.

      1. Provision may terminate this Agreement or any Addendum or applicable SOW (in each case, in whole or in part) by giving to the Client party written notice of termination upon the occurrence of any of the following events: (a) the Client breaches or defaults on any of the material terms or conditions of this Agreement (including Client's payment obligations under Section 10) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (b) the Client makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (c) any proceedings are instituted by or against the Client under any insolvency laws or for reorganization, receivership or dissolution.

      2. Either party may terminate this Agreement or any Addendum or applicable SOW (in each case, in whole or in part) for convenience by giving the other Party ninety (90) days' written notice.

    • Effect of Termination. Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement or any Addendum or applicable SOW: (a) Client must immediately cease accessing or using the Provision Solution; (b) within ten (10) days of expiration or termination, Client will destroy or deliver to Provision all copies of Provision's Confidential Information and Deliverables (as defined in the Terms of Implementation) and, at Provision's request, an officer of Client will certify to Provision such destruction or delivery; and (c) Provision will have no further obligation to provide any Products or perform Services of any kind to Client. Expiration or termination of this Agreement will not limit either Party from pursuing any other remedies available to it, including injunctive relief, nor will any such expiration or termination relieve either Party's obligation to pay all amounts and, and in the case of Client, Fees that have accrued or are otherwise owed by the parties under this Agreement up to the effective date of termination.

    • Retrieval of Client Data.

      1. At any time during the Term, Client may extract Client Data using Provision's standard web services and support services. Client Data will be made available in a format mutually agreed between the parties.

      2. Upon written request by Client made on or prior to any expiration or termination of this Agreement, or the end of an applicable Addendum Term, on a limited basis for purposes of Client retrieving Client Data, Provision will make Client Data available to Client through the Provision Platform for a period of up to 30 days after the expiration or termination of the Term or Addendum Term. Upon Client's request, Provision will provide any assistance reasonably required by Client to retrieve such Client Data provided that such assistance will be limited to consulting regarding the Provision Solution and will be based on Provision's then current rates for consulting services and such services will be set out in a SOW under the Terms of Implementation agreed between the parties.

      3. Subject to Section 17.3(b), Provision will have no obligation to maintain or provide any Client Data to Client following the termination or expiration of this Agreement. Unless prohibited by law, Provision will delete all Client Data following such termination or expiration, provided however, that Provision will not be required to remove any Client Data from its backup media and services that are maintained in accordance with its standard back procedures of record retention policies until such time as such backups are scheduled to be deleted provided that in all cases Client Data will continue to be protected in accordance with this Agreement.

    • Survival. Upon any termination or expiration of this Agreement, provisions contained in this Agreement that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Agreement, including the terms on the cover pages and Section 7 (Data and Proprietary Rights), 8.1 (Regulatory Requirements), 8.2 (Prohibited Uses), 12 (Representations and Warranties), 11.2 (Personal Information), 13 (Indemnification), 14 (Limitation of Liability), 15 (Confidentiality), 17.4 (Survival), and 20 (General) will survive.

18. Force Majeure. Excepting payment obligations, neither Party will be liable for delays caused by any event or circumstances beyond that party's reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that party's employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites ("Force Majeure"). The parties agree that in the event of a Force Majeure event affecting Provision continues for four (4) weeks ("Force Majeure Period"), either Party will be entitled to terminate this Agreement, by providing at least ten (10) days' written notice to the other party after the completion of the four (4) week Force Majeure Period. In the event of such termination, Client's sole remedy and Provision's sole liability will be to refund any prepaid Fees for the period beginning upon receipt of such written notice to the end of the term set out in the appliable Addendum.

19. Notices. All notices required by or relating to this Agreement must be in writing and sent by registered mail, return receipt requested, or via an internationally recognized express mail carrier (postage prepaid, return receipt requested), to the applicable Party to this Agreement. If to Client, notices will be sent to the address as set forth on the Subscription Form. If to Provision, notices must be sent to: Address: #201, 1215 13th Street SE, Calgary, AB T2G 3J4, Canada, Attn: Erik Westblom, CEO, erik.westblom@provision.io. Notices may also be sent to such other address as the applicable Party may have given by written notice in accordance with this provision. All notices required by or relating to this Agreement may also be communicated by electronic mail, if the sender also mails a hard copy of such notice to the aforementioned address.

20. General.

    • Governing Law. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Province of Alberta and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Calgary, Alberta, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Provision may: (i) commence lawsuits to collect unpaid Fees from the Client; and (ii) seek injunctive relief with respect to a violation of Provision's intellectual property rights; in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

    • Assignment. The Client may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of Provision. Any purported assignment or delegation by the Client in violation of this Section will be null and void. Provision may assign this Agreement or any rights under this Agreement to any third party without Client's consent. This Agreement enures to the benefit of and is binding upon the parties and their respective successors and permitted assigns.

    • Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

    • 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 occasion

    • Export. Client agrees not to directly or indirectly export, re-export or import any of the Provision Solution without first obtaining all required licenses, permits and permissions. Provision makes no representation or warranty that the Provision Solution may be exported without Client first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.

    • No Third Party Beneficiaries. Except for those third parties that have licensed software or other intellectual property to Provision that is included as part of the Product, no person or entity will be a third party beneficiary of this Agreement or have any right or cause of action hereunder.

    • Construction Except as otherwise provided in this Agreement, 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.

    • Independent Contractors. Provision's relationship to Client is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.

    • Entire Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether oral or written. If there is a conflict or inconsistency between these Terms of Service and the Terms of Implementation or SOW, then the provisions of these Terms of Service will govern to the extent of such conflict or inconsistency; provided, however, that the provisions of the Terms of Implementation or SOW will prevail over these Terms of Service to the extent the Terms of Implementation or SOW expressly refers to the provisions of these Terms of Service over which it prevails.

    • Counterparts. This Agreement may be signed in counterparts. An electronic signature using a qualified electronic certificate or facsimile signature will be treated in all respects as having the same effect as an original signature.

    • Language. The parties confirm that it is their wish that this Agreement, as well as any other documents relating to this Agreement, including notices, schedules and authorizations, have been and will be drawn up in the English language only, and no rule of strict construction will be applied against any party. Les signataires confirment leur volonté que la présente convention, de même que tous les documents s'y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement.