Subscription Services Agreement

WAVO.ME SUBSCRIPTION SERVICES AGREEMENT

BY SIGNING WAVO.ME’S (“WAVO.ME”, “WE”, “US” OR “OUR”) ORDER FORM REFERENCING THIS AGREEMENT, YOU (“CUSTOMER”, “YOU“ OR “YOUR”) AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS SUBSCRIPTION SERVICES AGREEMENT (“AGREEMENT”). IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH LEGAL ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS. OTHERWISE, YOU MAY NOT USE OUR SERVICES.

TERMS AND CONDITIONS

1. THE SERVICES

1.1. Subject to the terms of this Agreement, WAVO.ME will provide You with digital analytics services through Our proprietary web platform (“Platform”), on a subscription basis, during the Term of this Agreement.

1.2. You agree to cooperate with WAVO.ME and to provide all necessary information and assistance for the integration of Our Services into Your systems.

1.3. Any additional work which is not part of Our Services shall be itemized and billed separately according to the rates detailed in the Order Form.

2. PAYMENT OF FEES

2.1. You agree to pay WAVO.ME the fees set out in the Order Form, for the Services and any additional work, in accordance with the terms provided therein (the “Fees”). Except as otherwise set forth in the Order Form, all Fees are quoted and payable in United States dollars, and due within thirty (30) days of the invoice date. Prior to the commencement of Our Services, You agree to provide WAVO.ME with complete and accurate billing and contact information, including a valid email address for receipt of invoices.

2.2. Except as otherwise expressly stated in the Order Form or in this Agreement, all payment obligations are non-cancelable and non-refundable.

2.3. Unpaid due amounts are subject to a finance charge of 1.5% interest per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, including without limitation reasonable attorney’s fees. If Your account is more than thirty (30) days past due, WAVO.ME reserves the right to suspend the Services upon written notice to You, until such amounts are paid in full. WAVO.ME may pursue additional rights or remedies we may have under this Agreement or by law.

2.4. Except as otherwise expressly stated in an Order Form, You agree to be responsible for payment of any applicable taxes payable in connection with the Services, including without limitation all sales, value added and other similar taxes.

2.5. WAVO.ME reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Term or then-current Renewal Term (as defined below), upon thirty (30) days prior written notice to Customer (which may be sent by email).

3. PROPRIETARY RIGHTS

3.1. WAVO.ME is the sole and exclusive owner of all right, title and interest in and to (a) the Services and the Platform, any improvements, enhancements or modifications thereto, and associated documentation, (b) any software, inventions or other technology developed in connection with additional professional services described in an Order Form and provided under this Agreement, and (c)all the copyrights, trademarks, trade secrets, patents and all other intellectual property rights therein, issued or enforceable under applicable laws anywhere in the world and all moral rights related to any of the foregoing(collectively, “WAVO.ME IP Rights”), except for any data provided to WAVO.ME by You in whatever form or media, as further specified in Section 3.4 below. Neither this Agreement, nor anything contained herein, shall be construed as a sale or transfer of WAVO.ME IP Rights.

3.2. WAVO.ME hereby grants to You a limited non-exclusive right and license to use and access the Platform and Services, including any WAVO.ME IP Rights incorporated therein, for Your internal business purposes only, during the Term of the Agreement, and within the scope of use set forth in the applicable Order Form.

3.3. You agree that You will not, directly or indirectly, or allow any of its users to: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Platform, the Services or any software, documentation or data related to the Services; modify, translate, or create derivative works based on the Platform or the Services; or use the Platform or the Services in violation of applicable Laws or to create a competitive product.

3.4. You will own all right, title and interest in and to Customer Data (as defined in Section 5.1 below), as well as any data that is based on or derived from such Customer Data. Notwithstanding anything to the contrary, WAVO.ME shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and the Platform (including, without limitation, information concerning Customer Data and data derived therefrom), and WAVO.ME will be free (during and after the Term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other WAVO.ME offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business.

3.5. You hereby grant to WAVO.ME a limited, non-exclusive right and license to use the name of Your Legal Entity in WAVO.ME presentations and in its customer list, to refer to You as such, and to use its trademarks and logos on WAVO.ME’s website and presentations. Such right and license may be revoked by You at any time. Neither party will issue a press release announcing its relationship with the other party without the prior written approval (including by email) of such other party, which approval will not be unreasonably withheld or delayed.

3.6. In the event You provide WAVO.ME with instructions, requests, suggestions, comments or feedback (whether orally or in writing) with respect to the Platform and/or the Services, You acknowledge that any and all rights, including intellectual property rights, therein shall belong exclusively to WAVO.ME, without restrictions or limitations of any kind, and You hereby irrevocably and fully transfer and assign to WAVO.ME any and all intellectual property rights therein and waive any and all moral rights that You may have in respect thereto.

4. CONFIDENTIALITY

4.1. Any information provided hereunder by either party which is marked as “confidential” or should be reasonably understood by its nature or the circumstances of its disclosure to be confidential or proprietary to such party (“Confidential Information”) shall not be used, disclosed or reproduced by the other party without the express written consent of the party providing such information, other than for the performance of such party’s obligations under this Agreement. Unless otherwise stated herein, the terms of this Agreement (but not its existence and the parties thereto) and specifically the rates set forth in the Order Form shall be deemed Confidential Information.

4.2. “Confidential Information” excludes information which is (i) or has become generally known or available through no act or failure to act by the receiving party; (ii) already known or available at the time of receipt as evidenced by then-existing written records; (iii) hereafter furnished to the receiving party by a third party, as a matter of right and without restriction on its disclosure; (iv) disclosed by written permission of the party for whom such information is confidential; or (v) required to be disclosed by court order or law. If a party receives a demand in a legal proceeding that would require the Confidential Information of the other party to be disclosed, the receiving party shall notify the other party of the demand and assist the other party in obtaining a protective order or other relief.

4.3. The receiving party agrees: (i) to take reasonable precautions to protect such Confidential Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Confidential Information.

5. CUSTOMER DATA

5.1. You are responsible for obtaining all necessary rights and permissions to enable, and grant such rights and permissions to, WAVO.ME, its contractors and subprocessors to use, provide, store, and process, all data, software, and information that Customer or its authorized users provides, authorizes access to, or inputs into the Services (“Customer Data”) in the Services. Your responsibility includes, but is not limited to You providing all appropriate notices and disclosures and obtaining informed consent, if required, before providing any individual’s information, including personal or other regulated information in such Customer Data to WAVO.ME. You will not input, provide, or allow Customer Data to be input into the Services if such may be subject to governmental regulation or requires security measures beyond those specified by Wavo.me in its product documentation without WAVO.ME’s prior written consent. Customer shall remain fully liable for any such Customer Data subject to governmental regulation or requiring additional security measure input or provided without WAVO.ME’s prior written consent and shall defend, hold harmless and indemnify WAVO.ME and WAVO.ME’s affiliates and subsidiaries (including, without limitation, their employees, officers, directors, subcontractors and agents) from and against any and all losses, penalties, fines, damages, liabilities, settlements, costs and expenses, including reasonable attorneys’ fees. If and to the extent, European Union General Data Protection Regulation (EU/2016/679) (“GDPR”) applies to personal data contained in Customer Data, the parties shall discuss in good faith an amendment or supplement to this Agreement with terms governing such personal data.

6. WARRANTIES AND DISCLAIMERS

6.1. Each party represents that it has validly entered into this Agreement and has the legal power to do so and its provision of any materials in connection with this Agreement is authorized and does not breach its contractual obligations and/or any third party rights, including intellectual property rights.

6.2. WAVO.ME warrants that (i) we will implement and maintain reasonable security procedures and practices appropriate to the nature of any Customer Confidential Information disclosed to or accessible by Us in order to protect such information from unauthorized access, destruction, use, modification or disclosure, and that We shall promptly notify Customer in writing in the event any unauthorized access to Customer Confidential Information is suspected and permit Customer to control any public notifications, with Our reasonable assistance; (ii) we will take all commercially reasonable action to scan its software or technology to detect and eradicate any virus, time-bomb, trojan horse, worm or other harmful or disabling code prior to making such software or technology available to Customer; (iii) we will use reasonable efforts to maintain the Services in a manner which minimizes errors and interruptions in the Services; and(iv) we will perform the professional services in a professional and workmanlike manner.

In the event of any alleged breach of the warranties set forth in sections 6.2(ii), (iii) or (iv) above, You shall provide prompt notice to WAVO.ME of the alleged breach with sufficient specificity of non-conformance. Upon receipt of Customer’s notice, We shall promptly perform, repair or replace the non-conforming Services, at no additional cost to Customer. This remedy shall be Our sole liability, and Your exclusive remedy, in the event of any alleged breach or breach of the warranties set forth in sections 6.2(ii), (iii) or (iv).

6.3. YOU ACKNOWLEDGE THAT WAVO.ME HAS NOT REPRESENTED OR WARRANTED THAT THE SERVICES WILL BE UNINTERRUPTED, ERROR FREE OR WITHOUT DELAY. EXCEPT AS EXPRESSLY WARRANTED IN THIS SECTION 6, ALL SERVICES PROVIDED PURSUANT TO THIS AGREEMENT ARE PROVIDED OR PERFORMED ON AN “AS IS”, “AS AVAILABLE” BASIS, AND YOUR USE OF THE SERVICES IS SOLELY AT ITS OWN RISK. OTHER THAN AS SET FORTH IN THIS AGREEMENT, WAVO.ME DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL IMPLIED WARRANTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NONINFRINGEMENT. YOU ACKNOWLEDGE THAT THE SERVICES MAY BE TEMPORARILY UNAVAILABLE FOR MAINTENANCE, SCHEDULED OR UNSCHEDULED, EITHER BY WAVO.ME OR BY THIRD PARTY PROVIDERS, OR BECAUSE OF OTHER CAUSES BEYOND WAVO.ME’S REASONABLE CONTROL, BUT WAVO.ME SHALL USE REASONABLE EFFORTS TO PROVIDE ADVANCE NOTICE IN WRITING OR BY EMAIL OF ANY SCHEDULED SERVICE DISRUPTION.

7. INDEMNITY

7.1. Each party (the “Indemnitor”) shall defend, indemnify and hold the  other party (the “Indemnified Party”) and the Indemnified Party’s employees, affiliates and agents, harmless from and against any and all losses, damages, liabilities, costs and expenses, including reasonable attorneys’ fees (“Claims”) arising out of or in connection with (i) WAVO.ME’s breach of its warranty in Section 6.2(i); (ii) Your breach of its obligations in Section 5.2; (iii) either party’s breach of Section 4 (Confidentiality); and (iv) either party’s breach of Section 6.1, provided however, that the Indemnified Party: (i) promptly gives written notice of the Claim to the Indemnitor; (ii) gives the Indemnitor sole control of the defense and settlement of the Claim; and (iii) provides to the Indemnitor, at its cost, all reasonable assistance.

8. LIMITATION OF LIABILITY

8.1. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT (EXCLUDING THE EVENT OF BREACH OF SECTION 3(PROPRIETARY RIGHTS), 4 (CONFIDENTIALITY), 5 (CUSTOMER DATA), OR 7(INDEMNITY) ABOVE BY EITHER PARTY) SHALL EITHER PARTY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, INCLUDING, WITHOUT LIMITATION ANY LOST OPPORTUNITY OR PROFITS, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOODWILL OR ANY OTHER INTANGIBLE BENEFIT, EVEN IF SUCH DAMAGES ARE FORESEEABLE AND WHETHER OR NOT SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY THEREOF. IN NO EVENT SHALL EITHER PARTY’S LIABILITY EXCEED THE TOTAL AMOUNT PAID TO WAVO.ME BY CUSTOMER HEREUNDER DURING THE TWELVE (12) MONTHS PRECEDING THE DATE THE CLAIM IS BROUGHT.

8.2. The limited warranties, exclusive remedies and limited liability provisions set forth herein are fundamental elements of this Agreement, and each party accepts and confirms that the other party would not be able to perform on an economic basis without such limitations.

9. TERM AND TERMINATION

9.1. Subject to earlier termination as provided in Section 9.2 below, this Agreement commences on the date Customer first accepts it and continues until all Order Forms hereunder have expired or have been terminated (“Term”).

9.2. Either party may terminate this Agreement immediately if (i) the other party is in material breach of any of the terms or conditions of this Agreement and fails to cure such breach within thirty (30) calendar days of written notice thereof being provided by the party seeking to terminate, or (ii) the other party becomes insolvent or seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against the other party (and not dismissed within sixty (60) days).

9.3. Sections 3(Proprietary Rights), 4(Confidentiality), 6(Warranties and Disclaimers), 7 (Indemnity) and 8 (Limitation of Liability), 10 (Who You are Engaging With, Governing Law and Jurisdiction) and 11 (General Provisions) shall survive the completion, expiration, termination or cancellation of this Agreement for any reason, as well as any other provision of this Agreement which, in accordance with its terms, is intended to survive such termination.

9.4. In the event the Agreement is terminated or expired, all Order Forms are simultaneously terminated. Upon expiration or termination, WAVO.ME shall make available all Customer data for download or transfer and otherwise provide reasonable transition assistance for thirty (30) days at no additional cost.

10. GOVERNING LAW AND VENUE

10.1. These services (excluding any linked service) is controlled by WAVO.ME from its offices within Quebec, Canada. It can be accessed from all 10 provinces and 3 territories in Canada, as well as from other countries around the world. As each of these places has laws that may differ from those of Quebec, by accessing these services both of us agree that the statutes and laws of the Province of Quebec, and the federal laws of Canada applicable therein, without regard to the conflicts of laws principles thereof and the United Nations Convention on the International Sales of Goods, will apply to all matters relating to the use of these services and the purchase of products and services available through these services. The parties hereby agree and submit to the exclusive personal jurisdiction and venue any court of competent jurisdiction within Quebec with respect to such matters.

11. GENERAL PROVISIONS

11.1. The parties are independent contractors. No agency, partnership, joint venture, or employment is created as a result of this Agreement, and Customer does not have any authority of any kind to bind WAVO.ME in any respect whatsoever.

11.2. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested.

11.3. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right or any other right. Other than as expressly stated herein, the remedies provided herein are in addition to, and exclusive of, any other remedies of a party at law or in equity.

11.4. Neither party shall be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that’s party’s control and occurring without that party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes, or other labor problems.

11.5. Neither this Agreement nor any of the rights or obligations hereunder may be assigned by either party without consent of the other party. Notwithstanding the foregoing, WAVO.ME shall have the right to assign and transfer this Agreement to a parent, affiliate or subsidiary, in connection with a merger, reorganization, acquisition, change of control or other transfer or sale  of all or substantially all of its assets and/or voting securities without the prior written consent of Customer.

11.6. This Agreement, including any applicable Order Form, sets forth the entire agreement between the parties with respect to the subject matter and supersedes and replaces any prior or contemporaneous understandings. No change, amendment or modification of any provision of this Agreement shall be valid unless set forth in a written instrument signed by both parties. In the event of a conflict between a provision of this Agreement and an Order Form, the terms of the applicable Order Form will prevail.

11.7. In the event that any provision of this Agreement is held invalid or unenforceable then (i) such provision shall be deemed to be restated to reflect as nearly as possible the original intentions of the parties, and (ii) the remaining terms, provisions, covenants and restrictions of this Agreement shall remain in full force and effect.