This document outlines the contractual terms and conditions that apply to services offered by Canary Concussion, LLC. (“Canary Concussion”) to the entity identified in the Order Form (“Customer”). An “Order Form” means any purchase of products or services by Customer. These terms are incorporated into the Order Form and together with the Order Form comprise the “Agreement.” Canary Concussion and Customer may each be referred to herein each as a “party” and together as the “parties.”
1. Services. Subject to the terms of this Agreement, Canary Concussion will provide the Service specified in the Order Form. “Service(s)” means the proprietary software as a service offering(s) provided by Canary Concussion and made available in a hosted environment and mobile applications, together with any other related products and services described in the Order Form to be provided by Canary Concussion. Customer may authorize individuals to use the service and pay for such use, these individuals are referred to as “Users” under this agreement.
2. Customer Restrictions and Responsibilities. Customer is solely responsible for use of the Services by their authorized users, as well as Customer Content. Customer will ensure that each User agrees to the terms and conditions of their standard network usage agreement, and Customer agrees to reasonably enforce these terms and conditions against such User prior to allowing any User access to the Service. In addition, Customer agrees to: (a) maintain the security and confidentiality of passwords, (b) obtain any User consent necessary under this Agreement to allow Canary Concussion to provide the Services, (c) prevent unauthorized access and use of the Service by using commercially reasonable efforts, and (d) if it learns of any unauthorized access or use of the Services, promptly notify Canary Concussion. Customer shall not (and shall not permit Users to): (i) sell, lease, rent, lend, distribute, sublicense, or otherwise provide access to or transfer the Service to any firm, person, or entity except as expressly authorized herein, access the Service to build a competing service or product, or copy any function, feature or graphic for competitive purposes; (ii) modify, alter, adapt, or create derivative works from the Service or to merge the Service or any part thereof (including branding and proprietary markings) with other services or software, or (iii) remove or modify any proprietary markings in the Service.
3. Canary Concussion Responsibilities. Canary Concussion shall: (a) provide all updates and upgrades to the Service to Customer that Canary Concussion provides to its customer base for no additional charge; and (b) provide support (“Support”) pursuant to the current standard terms of Canary Concussion’s customer support as specified above in the Order Form.
4. Fees. Customer shall pay all fees (“Fees”) set forth in the Order Form above as consideration for the subscription to the Service. All Fees will be due within thirty (30) days after receipt of invoice, unless agreed to otherwise in the Order Form. All Fees owed by Customer are exclusive of, and Customer shall pay, all sales, use, VAT, excise, withholding, and other taxes that may be levied in connection with this Agreement. Except as expressly set forth in this Agreement, all Fees are non-refundable.
5. Representations and Warranties. Canary Concussion warrants that: (a) the features and functionality of the Service and Support may change but will not degrade materially during the Term. Canary Concussion’s sole liability
and Customer's exclusive remedy for breach of the warranties set forth in this Section 5 is that Canary Concussion shall correct the non-conforming Service at no additional charge to Customer. EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 5, CANARY CONCUSSION AND ITS SUPPLIERS DISCLAIM ALL WARRANTIES, WHETHER WRITTEN, ORAL, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE FOREGOING, CANARY CONCUSSION DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR BE ERROR-FREE.
6. Compliance. Each party will comply with all applicable laws and regulations (including all applicable export control laws and restrictions) with respect to its activities under this Agreement. Canary Concussion will implement reasonable, administrative, technical, and physical safeguards in an effort to secure its facilities and systems from unauthorized access and to secure the Customer Content.
7. Data. As between Canary Concussion and Customer, any and all information, data, text, photos, videos, audio files, notes or other material uploaded by a User through the Service remain the sole property of Customer (“Customer Content”). We may collect and de-identify personal information, including photos, videos, audio files, and other material uploaded by User (“De-Identified Data”), to help us create, develop, operate, deliver, and improve our products, models, platforms, services, content, and to conduct research. We may also use De-Identified Data and other personal information for internal purposes such as auditing, data analysis, and research to improve Canary Speech's products, services, and customer communications. As between the parties, Canary Concussion owns the statistical and aggregated data derived from the operation of the Service, including without limitation, the De-Identified Data, the number of records in the Service, the number and types of transactions, reports processed in the Service, and the performance results for the Service (the “Aggregated Data”). Nothing herein shall be construed as prohibiting Canary Concussion from utilizing the Aggregated Data, provided that Canary Concussion’s use of Aggregated Data will not reveal the identity, whether directly or indirectly, of any User or Customer.
8. Limitation of Liability. EACH PARTY AND ITS SUPPLIERS SHALL NOT BE LIABLE TO THE OTHER PARTY FOR ANY INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATED TO THIS AGREEMENT OR THE USE OR INABILITY TO USE THE SERVICES (INCLUDING WITHOUT LIMITATION, COSTS OF DELAY, LOSS OF DATA, AND ANY FAILURE OF DELIVERY OF THE SERVICE), EVEN IF THE OTHER PARTY HAS BEEN NOTIFIED OF THE LIKELIHOOD OF SUCH DAMAGES. EACH PARTY’S CUMULATIVE MAXIMUM LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT (WHETHER IN CONTRACT, TORT OR OTHERWISE) SHALL NOT EXCEED THE AMOUNT PAID BY CUSTOMER UNDER THIS AGREEMENT WITHIN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO LIABILITY.
9. Confidentiality. Each party acknowledges that the other party may disclose its Confidential Information to the other in the performance of this Agreement. Accordingly, each party shall: (a) keep the Confidential Information disclosed by the other party confidential, (b) use Confidential Information only for purposes of fulfilling its obligations and exercising its rights hereunder, and (c) disclose such Confidential Information only to the receiving party’s employees who have a need to know and only for the purposes of fulfilling this Agreement or to the extent required by law. As used herein, “Confidential Information” means any and all confidential or proprietary information, data or know-how disclosed by either party to the other party, whether disclosed in writing, orally, electronically or by another means.
Confidential Information shall include all information about the Party's businesses, operations, finances, properties, employees, relationships with third parties, plans, trade secrets and other intellectual property and "know-how" and all other information, materials and documents that are delivered or otherwise disclosed by one party to the other, whether or not that information is identified as confidential. Confidential Information shall not include information that: (a) is independently developed by the Party without use of or access to any Confidential Information of the other Party; (b) is or becomes a matter of public knowledge through no fault of the other Party; (c) is rightfully received by a Party from a third party without a duty of confidentiality; or (d) is identified by the Party in writing as no longer confidential and proprietary.
10. Proprietary Rights. As between Customer and Canary Concussion, the Canary Concussion Intellectual Property is, and shall at all times remain, the sole and exclusive property of Canary Concussion. Customer shall have no right to use, copy, distribute or create derivative works of the Canary Concussion Intellectual Property except as expressly provided herein. Canary Concussion shall have the right, in its sole discretion, to modify the Canary Concussion Intellectual Property. “Canary Concussion Intellectual Property” means (a) the Service, (b) all improvements, changes, enhancements and components thereof, (c) all other proprietary materials of Canary Concussion and/or its licensors that are delivered, provided or used by Canary Concussion in the course of providing the Service, and (d) all other intellectual property owned by Canary Concussion and all copyrights, patents, trademarks and trade names, trade secrets, specifications, methodologies, documentation, algorithms, criteria, designs, report formats and know-how, as well as and any underlying source code and object code related thereto.
11. Feedback. Canary Concussion may send surveys to Users to solicit feedback regarding performance of the Service and suggestions for improvements. Such feedback may be freely used by Canary Concussion for any business purpose both during and after the Term.
12. Term and Termination. The term of this Agreement is specified in the Order Form (“Term”) and shall continue for its full duration unless earlier terminated by a party in accordance with this Section 12. Either party may terminate this Agreement for the material breach of any provision of this Agreement by the other party if such material breach remains unremedied for thirty (30) days after receipt of written notice of such breach from the non-breaching party. Such termination right shall be in addition to any other rights and remedies that may be available to the non-breaching party. In the event the Agreement is terminated, all Order Forms are simultaneously terminated. Upon expiration or termination of this Agreement Customer shall immediately cease using the Services and pay any owed but unpaid amounts provided under the Payment Terms.
13. Suspension of Service. Canary Concussion may monitor the Service for a violation of this Agreement or any applicable law or third party rights
and may suspend access to the Service and remove applicable Customer Content to the extent and for the duration of any such violation. Canary Concussion will attempt to provide notice to Customer in advance of any suspension to the extent practical under the circumstances, but is not required to do so. Customer agrees that Canary Concussion will not be liable to Customer or a User if Canary Concussion exercises its suspension rights as permitted by this Section 13.
14. General. Any notice by a party under this Agreement shall be in writing and either personally delivered or sent via email or reputable overnight courier (such as Federal Express) or certified mail, postage prepaid and return receipt requested, addressed to the other party at the address specified in the Order Form or such other address of which either party may from time to time notify the other in accordance with this Section 14. A copy of all notices to Canary Concussion shall be sent to: Canary Concussion, LLC., 3305 N University Ave, Suite 275, Provo, UT 84604, Attention: General Counsel. For purposes of service messages and notices about the Service, Canary Concussion may place a banner notice or send an email to an email address associated with an account. It is the User’s responsibility to ensure that a current email address is associated with their account. All notices shall be in English and shall be deemed effective upon receipt. If Canary Concussion is unable to perform its obligations under this Agreement due to circumstances beyond its reasonable control, including, but not limited to, acts of God, earthquakes, hacker attacks, actions or decrees of governmental bodies, changes in applicable laws, or communication or power failures, such obligations will be suspended so long as those circumstances persist. This Agreement shall be interpreted, governed and construed by the laws of the State of Delaware without regard principles of conflict of laws. Canary Concussion is acting in performance of this Agreement as an independent contractor to Customer. If any term of this Agreement is invalid or unenforceable, the other terms remain in effect and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law. Amendments to this Agreement must be made in writing and signed by both parties unless otherwise specified in the Agreement. This Agreement constitutes the entire agreement between the parties with respect to the subject matter of this Agreement, and any prior representations, statements, and agreements relating thereto are superseded by the terms of this Agreement. Canary Concussion rejects additional or conflicting terms of any Customer form-purchasing document. Customer shall not assign this Agreement, in whole or in part, to any entity without Canary Concussion’s prior written consent. Any attempt to assign this Agreement, in whole or part, in contravention of this Section 14, shall be void. This Agreement shall be binding upon and shall inure to the benefit of the parties hereto and their successors and permitted assigns. Any failure by either party to enforce the other party's strict performance of any provision of this Agreement will not constitute a waiver of its right to subsequently enforce such provision or any other provision of this Agreement. Customer agrees to allow Canary Concussion to use its name, logo and non-competitive use details in both text, pictures, and videos in its various marketing communications and materials, in accordance with Customer’s trademark guidelines and policies. Any terms that by their nature survive termination or expiration of this Agreement, will survive (including, but not limited to, Sections 8, 9, 10, and 14). Customer must consult with and receive approval from Canary Concussion before engaging in any third party marketing which involves Canary Concussion and it's products.