1. DEFINITIONS
(a) “Affiliate” in relation to a Party means any entity which, either directly or indirectly “controls”, “is controlled by”, or “is under common control” with, the Party specified. For the purposes of this definition, “control” of an entity means that the specified Party, directly or indirectly, has the power to direct or cause the direction of the management and policies of that entity through the ownership of voting securities, by contract or otherwise.
(b) “Business Day” means Monday through Friday, excluding any days that are statutory holidays under the laws of the Province of New Brunswick or the laws of Canada applicable therein.
(c) “Confidential Information” means all know-how, trade or other secrets, and any other information or data, directly or indirectly, disclosed by one Party and/or its Affiliates (the “Disclosing Party”), to the other Party (the “Receiving Party”) under this Services Agreement (whether verbal, written, or existing, stored, or communicated in any form or medium). This includes, without limitation, technical information and data, equipment, documents, reports, analyses, recommendations, tests, financial data, correspondence, communications, pricing, products, design and function specifications, technologies, computer programs, software, systems, features, techniques, methodologies, processes, manuals, inventions (whether or not patentable), algorithms, configurations, business information, together with copies thereof, and all information and data derived therefrom.
Confidential Information excludes information that:
(i) is or becomes publicly available through no breach of this Agreement or wrongful act of the Receiving Party;
(ii) is known to the Receiving Party without restriction prior to receiving it from the Disclosing Party;
(iii) is required to be disclosed by law, provided that prior written notice is given;
(iv) is lawfully disclosed to a Party by a third party without restriction; or
(v) is independently developed by the Receiving Party without use of the Disclosing Party’s Confidential Information.
For clarity, the algorithms underlying the Services shall be deemed Confidential Information regardless of the above exclusions.
(d) “Agiea Platform” means the engagement and analytics services offered by Agiea to Customer and its Users.
(e) “Customer Data” means the information collected, received, transmitted, uploaded, stored, and/or processed by Agiea from Customer and Users in the course of providing the Services.
(f) “Fees” means the fees payable by Customer for the Services and any other services provided by Agiea in accordance with the Services Agreement.
(g) “Normal Business Hours” means 8:30 a.m. to 5:00 p.m. (Eastern Time) on Business Days.
(h) “Parties” means Agiea and Customer, and “Party” means either one of them.
(i) “Personnel” includes directors, officers, employees, agents, consultants, representatives, and other individuals employed, engaged or retained by Customer or Agiea, as the case may be.
(j) “Privacy Statements” means the privacy statements relating to the Services (including the User Privacy Statement and the Non-User Privacy Statement), as amended by Agiea from time to time on notice to Customer.
(k) “Service Schedule” means a separate document (including work orders, statements of work, and related exhibits) signed by both Parties describing the Services to be provided and other agreed-upon terms.
(l) “Services” means access to the Agiea Platform and those other services performed by Agiea under this Agreement and each Service Schedule.
(m) “Services Agreement” means the Services Agreement to which these Standard Terms and Conditions are attached, including all applicable Service Schedules.
(n) “Standard Terms and Conditions” means these standard Terms and Conditions.
(o) “Term” means the Initial Term and any Renewal Term as defined in Section 5.
(p) “User” means Customer’s Personnel authorized to use the Agiea Platform and Services.
2. SERVICES
2.1 Provision of Services
Subject to these Terms, Agiea will provide the Services as specified in one or more Service Schedules. Each Service Schedule and these Terms shall constitute a separate agreement. These Terms are incorporated by reference in every Service Schedule.
2.2 Changes in Services
Agiea may modify, discontinue, substitute, delete, or restrict any aspect of the Services upon notice. Any resulting fee changes will be reflected in an amended Service Schedule.
2.3 Control of Services
Agiea retains full control of the Services and may subcontract without Customer’s prior consent.
2.4 Concealed or Unknown Conditions
If Agiea encounters material variations in Customer Data, it may notify Customer and amend the Service Schedule to equitably adjust Fees.
2.5 Network Quality
Agiea is not liable for network failures outside of its control. Services may rely on third-party data, which Agiea does not warrant as uninterrupted or error-free.
2.6 Privacy
The User Privacy Statement governs user data. Customer must also comply with the Non-User Privacy Statement and applicable laws regarding data use and collection.
3. OWNERSHIP OF PROPERTY
3.1 Services
All IP rights related to the Services remain the property of Agiea and its Affiliates.
3.2 License Grant
Agiea grants Customer a non-exclusive, non-transferable license to use the Agiea Platform and Services. Customer may not reverse-engineer, sublicense, or alter notices or create derivative works from the Services.
3.3 Ownership of Customer Data
Customer retains ownership of Customer Data but grants Agiea a license to use it for providing the Services. Agiea may also use aggregated data for research and benchmarking.
3.4 Reservation of Rights
All rights not expressly granted remain with Agiea or Customer, as applicable.
4. FEES AND PAYMENT
4.1 Services Fees
Fees are as set out in the Service Schedule(s). Additional services requested by Customer are billed on a time-and-materials basis.
4.2 Expenses
Customer shall reimburse Agiea for out-of-pocket expenses incurred in service delivery.
4.3 Invoicing and Payment
Invoices are payable upon receipt unless otherwise stated in the Service Schedule.
4.4 Taxes
Customer is responsible for all applicable taxes.
4.5 Late Payments
Unpaid amounts after 30 days are subject to 1.5% monthly interest. Agiea may suspend Services for unpaid invoices.
4.6 Invoicing Disputes
Discrepancies must be reported within 30 days of invoice date. Otherwise, the invoice is deemed accepted.
4.7 Rate Adjustment
Agiea may increase Fees with 60 days’ written notice.
5. TERM AND TERMINATION
5.1 Term
This Agreement begins on the Effective Date and continues for one year (Initial Term), renewing annually unless terminated with six months’ notice.
5.2 Termination of Agreement
Either Party may terminate the Agreement with six months’ written notice, provided all Service Schedules are also terminated.
5.3 Termination of Service Schedule
Either Party may terminate a Service Schedule with six months’ notice. Fees paid to the termination date are non-refundable.
5.4 Insolvency/Bankruptcy
Either Party may terminate immediately if the other Party becomes insolvent or bankrupt.
5.5 Obligations on Termination
Upon termination, Customer must:
(i) Pay all amounts due to Agiea;
(ii) Return or destroy all Confidential Information per Section 6.3.
6. CONFIDENTIAL INFORMATION
6.1 Non-Disclosure / Non-Use
All Confidential Information remains the property of the Disclosing Party. During and after the Term, the Receiving Party shall:
(i) Keep it strictly confidential;
(ii) Disclose it only to those with a need to know and under similar obligations;
(iii) Not use it for their own purposes.
