These Terms of Service (the “Agreement“) are by and between you (“Subscriber“) and Retail Innovation Labs Inc. dba Cova Software if you are located in Canada or Retail Innovation Labs, LLC dba Cova Software if you are located outside of Canada (“Cova“).
The individual accepting this Agreement may be representing on behalf of a legal entity. Such an individual represents that they have the authority to bind the entity to this Agreement.Definitions
“Access Credentials” means any username, identification number, password, license or security key, security token, PIN, or other security code, method, technology, or device, as applicable, and used alone or in combination, to verify an individual’s identity and authorization to access and use the Services.
“Action” means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity, or otherwise.
“Affiliate” of a Person means any other Person that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, such Person. The term “control” (including the terms “controlled by” and “under common control with”) means the direct or indirect power to direct or cause the direction of the management and policies of a Person, whether through ownership of more than 50% of the voting securities of a Person, or by other any other means.
“Authorized Users” means Subscriber’s employees, consultants, contractors, and agents (a) who are authorized by Subscriber to access and use the Services under the rights granted to Subscriber pursuant to this Agreement; and (b) for whom access to the Services has been purchased hereunder.
“Cova Disabling Device” means any software, hardware, or other technology, device, or means (including any back door, time bomb, time out, drop dead device, software routine, or other disabling device) used by Cova or its designee to disable Subscriber’s or any Authorized User’s access to or use of the Services automatically with the passage of time or under the positive control of Cova or its designee.
“Cova Materials” means the Services, Specifications, Documentation, and Cova Systems and any and all other information, data, documents, materials, works, and other content, devices, methods, processes, hardware, software, Cova backups and other technologies and inventions, including any deliverables, technical or functional descriptions, requirements, plans, or reports, that are provided or used by Cova or any Subcontractor in connection with the Services or otherwise comprise or relate to the Services or Cova Systems. For the avoidance of doubt, Cova Materials include Resultant Data and any information, data, or other content derived from Cova’s monitoring of Subscriber’s access to or use of the Services, but do not include Subscriber Data.
“Cova Personnel” means all individuals involved in the performance of Services as employees, agents, or independent contractors of Cova or any Subcontractor.
“Cova Systems” means the information technology infrastructure used by or on behalf of Cova in performing the Services, including all computers, software, hardware, databases, electronic systems (including database management systems), and networks, whether operated directly by Cova or through the use of third-party services.
“Documentation” means any manuals, instructions, or other documents or materials that the Cova provides or makes available to Subscriber in digital form or medium and which describe the functionality, components, features, or requirements of the Services or Cova Materials, including any aspect of the installation, configuration, integration, operation, use, support, or maintenance thereof.
“Harmful Code” means any software, hardware, or other technology, device, or means, including any virus, worm, malware, or other malicious computer code, the purpose or effect of which is to (a) permit unauthorized access to, or to destroy, disrupt, disable, distort, or otherwise harm or impede in any manner any (i) computer, software, firmware, hardware, system, or network; or (ii) any application or function of any of the foregoing or the security, integrity, confidentiality, or use of any data Processed thereby; or (b) prevent Subscriber or any Authorized User from accessing or using the Services or Cova Systems as intended by this Agreement. Harmful Code does not include any Cova Disabling Device.
“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection, or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
“Law” means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, state, local, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
“Losses” means any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
“Person” means an individual, corporation, partnership, joint venture, limited liability entity, governmental authority, unincorporated organization, trust, association, or other entity.
“Process” means to take any action or perform any operation or set of operations that the SaaS Services are capable of taking or performing on any data, information, or other content[, including to collect, receive, input, upload, download, record, reproduce, store, organize, compile, combine, log, catalog, back up procedures, cross-reference, manage, maintain, copy, adapt, alter, translate, or make other derivative works or improvements, process, retrieve, output, consult, use, perform, display, disseminate, transmit, submit, post, transfer, disclose, or otherwise provide or make available, or block, erase, or destroy. “Processing” and “Processed” have correlative meanings.
“Proposal” means Cova’s written offer to furnish software-as-as-services and professional services at upon such terms as mutually agreed upon by both Cova and Subscriber, and shall act as the statement of work, as amended from time to time as mutually agreed upon by Cova and Subscriber.
“Representatives” means, with respect to a party, that party’s and its Affiliates’ employees, officers, directors, consultants, agents, independent contractors, service providers, sublicensees, subcontractors, and legal advisors.
“Resultant Data” means data and information related to Subscriber’s use of the Services that is used by Cova in an aggregate and anonymized manner, including, but not limited to compiling statistical and performance information related to the provision and operation of the Services.
“Services” means the software-as-a-service and professional services offering described in the Proposal, attached hereto as Exhibit A, and made a part hereof.
“Subscriber Data” means information, data, and other content, in any form or medium, that is collected, downloaded, or otherwise received, directly or indirectly, from Subscriber or an Authorized User by or through the Services or that incorporates or is derived from the Processing of such information, data, or content by or through the Services. For the avoidance of doubt, Subscriber Data does not include Resultant Data, or any other information reflecting the access or use of the Services by or on behalf of Subscriber or any Authorized User.
“Subscriber Systems” means the Subscriber’s information technology infrastructure, including computers, domains, hosting services, software, hardware, databases, data backup systems, electronic systems (including database management systems), and networks, whether operated directly by Subscriber or through the use of third-party services.
“Territory” means the Province of Ontario, or any other state or province in which Subscriber operates its cannabis related business or businesses.
“Third-Party Materials” means materials and information, in any form or medium, including any open-source or other software, documents, data, content, specifications, products, equipment, or components of or relating to the Services that are not proprietary to Cova.Services
2.1. Access and Use
Subject to and conditioned on Subscriber’s and its Authorized Users’ compliance with the terms and conditions of this Agreement and any other agreements Subscriber may have entered with Cova, Cova hereby grants Subscriber a non-exclusive, non-transferable (except in compliance with Section 14.9) right to access and use the Services during the Term, solely for use by Authorized Users in accordance with the terms and conditions herein. Such use is limited to Subscriber’s internal use. Cova shall provide to Subscriber the Access Credentials within a reasonable time following the Effective Date or completion of all Cova’s required onboarding procedures, to access Subscriber’s administrative dashboard (“Admin Dashboard“). The total number of Authorized Users will not exceed the number set forth in the Proposal, except as expressly agreed to in writing by the parties and subject to any appropriate adjustment of the Fees payable hereunder.
2.2. Documentation License
Cova hereby grants to Subscriber a non-exclusive, non-sublicensable, non-transferable (except in compliance with Section 14.9) license to use the Documentation during the Term solely for Subscriber’s internal business purposes in connection with its use of the Services.
2.3. Service and System Control
Except as otherwise expressly provided in this Agreement, as between the parties:
Cova has and will retain sole control over the operation, provision, maintenance, and management of the Cova Materials, subject to the terms set forth in this Agreement; and
Subscriber has and will retain control over the operation, maintenance, and management of, and all access to and use of, the Subscriber Systems (including any and all fees payable to third parties in connection with the Subscriber Systems), and will have sole responsibility for all access to and use of the Cova Materials by any Person by or through the Subscriber Systems or any other means controlled by Subscriber or any Authorized User, including any: (i) information, instructions, or materials provided by any of them to the Services or Cova; (ii) results obtained from any use of the Services or Cova Materials; and (iii) conclusions, decisions, or actions based on such use.
2.4. Reservation of Rights
Nothing in this Agreement grants any right, title, or interest in or to (including any license under) any Intellectual Property Rights in or relating to, the Services, Cova Materials, or Third-Party Materials, whether expressly, by implication, estoppel, or otherwise. All right, title, and interest in and to the Services, the Cova Materials, and the Third-Party Materials are, and will remain, with Cova and the respective rights holders in the Third-Party Materials.
2.5. Service Management
Subscriber shall, throughout the Term, maintain within its organization a service manager or service managers to serve as such party’s primary point of contact for day-to-day communications, consultation, and decision-making regarding this Agreement. Each service manager shall be responsible for providing all day-to-day consents and approvals on behalf of such party under this Agreement. Subscriber shall ensure its service manager has the requisite organizational authority, skill, experience, and other qualifications to perform in such capacity. The parties’ initial service managers are identified in the Proposal. Subscriber shall use commercially reasonable efforts to maintain the same service manager in place throughout the Term. If Subscriber’s service manager ceases to be employed by Subscriber or Subscriber otherwise wishes to replace its service manager, Subscriber shall promptly name a new service manager by written notice to Cova.
Cova reserves the right, in its sole discretion, to make any changes to the Services and Cova Materials that it deems necessary or useful to: (a) maintain or enhance: (i) the quality or delivery of Cova’s services to its Subscribers; (ii) the competitive strength of or market for Cova’s services; or (iii) the Services’ cost efficiency or performance; or (b) to comply with applicable Law. Without limiting the foregoing, either party may, at any time during the Term, request in writing changes to the Services. The parties shall evaluate and, if agreed, implement all such requested changes in accordance with the change procedure set forth in the Proposal. No requested changes will be effective unless and until memorialized in a written change order or revised Proposal signed by both parties.
Cova may from time to time in its sole discretion engage third parties to perform Services (each, a “Subcontractor“).
2.8. Suspension or Termination of Services
Cova may, directly or indirectly, and by use of a Cova Disabling Device or any other lawful means, suspend, terminate, or otherwise deny Subscriber’s, any Authorized User’s, or any other Person’s access to or use of all or any part of the Services or Cova Materials, without incurring any resulting obligation or liability, if: (a) Cova receives a judicial or other governmental demand or order, subpoena, or law enforcement request that expressly or by reasonable implication requires Cova to do so; or (b) Cova believes, in its reasonable discretion, that: (i) Subscriber or any Authorized User has failed to comply with any term of this Agreement, or accessed or used the Services beyond the scope of the rights granted or for a purpose not authorized under this Agreement or in any manner that does not comply with any instruction or requirement of the Specifications; (ii) Subscriber or any Authorized User is, has been, or is likely to be involved in any fraudulent, misleading, or unlawful activities relating to or in connection with any of the Services; or (iii) this Agreement is terminated. This Section 2.8 does not limit any of Cova’s other rights or remedies, whether at law, in equity, or under this Agreement.Use Restrictions; Service Usage and Data Storage
3.1. Use Restrictions
Subscriber shall not, and shall not permit any other Person to, access or use the Services or Cova Materials except as expressly permitted by this Agreement and, in the case of Third-Party Materials, the applicable third-party license agreement. For purposes of clarity and without limiting the generality of the foregoing, Subscriber shall not, except as this Agreement expressly permits:
copy, modify, or create derivative works or improvements of the Services or Cova Materials;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Services or Cova Materials to any Person, including on or in connection with the internet or any time-sharing, service bureau, software as a service, cloud, or other technology or service;
reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Services or Cova Materials, in whole or in part;You must provide your full legal name, a valid email address, and any other information requested by us in order to complete the signup process.
bypass or breach any security device or protection used by the Services or Cova Materials or access or use the Services or Cova Materials other than by an Authorized User through the use of his or her own then valid Access Credentials;
input, upload, transmit, or otherwise provide to or through the Services or Cova Systems, any information or materials that are unlawful or injurious, or contain, transmit, or activate any Harmful Code;
damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Services, Cova Systems, or Cova’s provision of services to any third party, in whole or in part;
remove, delete, alter, or obscure any trademarks, Specifications, Documentation, EULA, warranties, or disclaimers, or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from any Services or Cova Materials, including any copy thereof;
access or use the Services or Cova Materials in any manner or for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Right or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any other Cova Subscriber), or that violates any applicable Law;
access or use the Services or Cova Materials for purposes of competitive analysis of the Services or Cova Materials, the development, provision, or use of a competing software service or product or any other purpose that is to the Cova’s detriment or commercial disadvantage; or
access or use the Services or Cova Materials in, or in association with, the design, construction, maintenance, or operation of any hazardous environments, systems, or applications, any safety response systems or other safety-critical applications, or any other use or application in which the use or failure of the Services could lead to personal injury or severe physical or property damage; or
otherwise access or use the Services or Cova Materials beyond the scope of the authorization granted under this Section 3.1.
4.1. Subscriber Systems and Cooperation
Subscriber shall at all times during the Term: (a) set up, maintain, and operate in good repair and in accordance with the Specifications all Subscriber Systems (as defined herein) on or through which the Services are accessed or used; (b) provide Cova Personnel with such access to Subscriber’s premises and Subscriber Systems as is necessary for Cova to perform the Services in accordance with the Availability Requirement and Specifications; and (c) provide all cooperation and assistance as Cova may reasonably request to enable Cova to exercise its rights and perform its obligations under and in connection with this Agreement.
4.2. Effect of Subscriber Failure or Delay
Cova is not responsible or liable for any delay or failure of performance caused in whole or in part by Subscriber’s delay in performing, or failure to perform, any of its obligations under this Agreement (each, a “Subscriber Failure“).
4.3. Corrective Action and Notice
If Subscriber becomes aware of any actual or threatened activity prohibited by 3.1, Subscriber shall, and shall cause its Authorized Users to, immediately: (a) take all reasonable and lawful measures within their respective control that are necessary to stop the activity or threatened activity and to mitigate its effects (including, where applicable, by discontinuing and preventing any unauthorized access to the Services and Cova Materials and, upon request of Cova, permanently erasing from their systems and destroying any data to which any of them have gained unauthorized access); and (b) notify Cova of any such actual or threatened activity.
During the Term and for two (2) years after, Subscriber shall not, and shall not assist any other Person to, directly or indirectly, recruit or solicit (other than by general advertisement not directed specifically to any Person or Persons) for employment or engagement as an independent contractor any Person then or within the prior twelve (12) months employed or engaged by Cova or any Subcontractor and involved in any respect with the Services or the performance of this Agreement. In the event of a violation of this Section 4.4, Cova will be entitled to liquidated damages equal to the compensation paid by Cova to the applicable employee or contractor during the prior twelve (12) months.Data Backup
The Cova Systems are programmed to perform routine data backups pursuant to the backup features provided to Cova by third-party backup-as-a-service providers. Notwithstanding the foregoing, the Cova Systems and the Services do not replace the need for Subscriber to maintain regular data backups or redundant data archives. Cova HAS NO OBLIGATION OR LIABILITY FOR ANY LOSS, ALTERATION, DESTRUCTION, DAMAGE, CORRUPTION, OR RECOVERY OF SUBSCRIBER DATA, AND SUBSCRIBER IS RESPONSIBLE FOR BACKING UP ALL SUBSCRIBER DATA.Security
6.1. Information Security
Cova provides security measures pursuant to security features provided to Cova by third-parties security-as-a-service providers.
6.2. Subscriber Control and Responsibility
Subscriber has and will retain sole responsibility for: (a) all Subscriber Data, including its content and use; (b) all information, instructions, and materials provided by or on behalf of Subscriber or any Authorized User in connection with the Services; (c) any and all Subscriber Systems, as defined herein; (d) the security and use of Subscriber’s and its Authorized Users’ Access Credentials; and (e) all access to and use of the Services and Cova Materials directly or indirectly by or through the Subscriber Systems or its or its Authorized Users’ Access Credentials, with or without Subscriber’s knowledge or consent, including all results obtained from, and all conclusions, decisions, and actions based on, such access or use.
6.3. Access and Security
Subscriber shall employ all physical, administrative, and technical controls, screening, and security procedures and other safeguards necessary to: (a) securely administer the distribution and use of all Access Credentials and protect against any unauthorized access to or use of the Services or Admin Dashboard; and (b) control the content and use of Subscriber Data, including the uploading or other provision of Subscriber Data through the Admin Dashboard or other method of upload, for Processing by the Services.Fees and Payment
Subscriber shall pay Cova the fees set forth in the Proposal, as may be amended from time to time (“Fees“) in accordance with this 7.
All Fees and other amounts payable by Subscriber under this Agreement are exclusive of taxes and similar assessments. Without limiting the foregoing, Subscriber is responsible for all sales, use, and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental or regulatory authority on any amounts payable by Subscriber hereunder, other than any taxes imposed on Cova’s income.
Subscriber shall pay all Fees on or prior to the due date set forth in Proposal or within fifteen (15) days after the date of the invoice therefor. Subscriber shall make all payments hereunder in US or Canadian dollars by Automated Clearing House (ACH) Payment, credit card, or other Cova accepted method of payment. Subscriber shall make payments to the address or account specified in Proposal or such other address or account as Cova may specify in writing from time to time.
7.4. Late Payment
If Subscriber fails to make any payment when due then, in addition to all other remedies that may be available:
Cova may charge interest on the past due amount at the rate of 1.5% per month calculated daily and compounded monthly or, if lower, the highest rate permitted under applicable Law;
Subscriber shall reimburse Cova for all costs incurred by Cova in collecting any late payments or interest, including attorneys’ fees, court costs, and collection agency fees; and
if such failure continues for thirty (30) days following written notice thereof, Cova may suspend performance of the Services until all past due amounts and interest thereon have been paid, without incurring any obligation or liability to Subscriber or any other Person by reason of such suspension.
7.5. No Deductions or Setoffs
All amounts payable to Cova under this Agreement shall be paid by Subscriber to Cova in full without any setoff, recoupment, counterclaim, deduction, debit, or withholding for any reason (other than any deduction or withholding of tax as may be required by applicable Law).
7.6. Fee Increases
Cova may increase Fees within Cova’s sole discretion, by providing written notice to Subscriber at least sixty (60) calendar days prior to the commencement of such fee increase taking effect, and any applicable Proposal(s) will be deemed amended accordingly.Confidentiality
8.1. Confidential Information
In connection with this Agreement each party (as the “Disclosing Party“) may disclose or make available Confidential Information to the other party (as the “Receiving Party“). Subject to Section 8.2, “Confidential Information” means information in any form or medium (whether oral, written, electronic, or other) that the Disclosing Party considers confidential or proprietary, including information consisting of or relating to the Disclosing Party’s technology, trade secrets, know-how, business operations, plans, strategies, Subscribers, and pricing, and information with respect to which the Disclosing Party has contractual or other confidentiality obligations, in each case whether or not marked, designated, or otherwise identified as “confidential”. Without limiting the foregoing: all Cova Materials are the Confidential Information of Cova and the terms and existence of this Agreement are the Confidential Information of Cova.
Confidential Information does not include information that : (a) was rightfully known to the Receiving Party without restriction on use or disclosure prior to such information’s being disclosed or made available to the Receiving Party in connection with this Agreement; (b) was or becomes generally known by the public other than by the Receiving Party’s or any of its Representatives’ noncompliance with this Agreement; (c) was or is received by the Receiving Party on a non-confidential basis from a third party that was not or is not, at the time of such receipt, under any obligation to maintain its confidentiality; or (d) the Receiving Party can demonstrate by written or other documentary records was or is independently developed by the Receiving Party without reference to or use of any Confidential Information.
8.3. Protection of Confidential Information
As a condition to being provided with any disclosure of or access to Confidential Information, the Receiving Party, during the term of this Agreement and for eighteen (18) months upon the expiration or termination of this Agreement, shall:
not access or use Confidential Information other than as necessary to exercise its rights or perform its obligations under and in accordance with this Agreement;
except as may be permitted by and subject to its compliance with 8.4, not disclose or permit access to Confidential Information other than to its Representatives who: (i) need to know such Confidential Information for purposes of the Receiving Party’s exercise of its rights or performance of its obligations under and in accordance with this Agreement; (ii) have been informed of the confidential nature of the Confidential Information and the Receiving Party’s obligations under this Section 8.3; and (iii) are bound by confidentiality and restricted use obligations at least as protective of the Confidential Information as the terms set forth in this Section 8;
safeguard the Confidential Information from unauthorized use, access, or disclosure using at least the degree of care it uses to protect its similarly sensitive information and in no event less than a reasonable degree of care;
promptly notify the Disclosing Party of any unauthorized use or disclosure of Confidential Information and reasonably cooperate with Disclosing Party to prevent further unauthorized use or disclosure; and
ensure its Representatives’ compliance with and be responsible and liable for any of its Representatives’ non-compliance with, the terms of this Section 8.
Notwithstanding any other provisions of this Agreement, the Receiving Party’s obligations under this 8 with respect to any Confidential Information that constitutes a trade secret under any applicable Law will continue until such time, if ever, as such Confidential Information ceases to qualify for trade secret protection under one or more such applicable Laws other than as a result of any act or omission of the Receiving Party or any of its Representatives.
8.4. Compelled Disclosures
If the Receiving Party or any of its Representatives is compelled by applicable Law to disclose any Confidential Information then, to the extent permitted by applicable Law, the Receiving Party shall: (a) promptly, and prior to such disclosure, notify the Disclosing Party in writing of such requirement so that the Disclosing Party can seek a protective order or other remedy or waive its rights under 8.3; and (b) provide reasonable assistance to the Disclosing Party, at the Disclosing Party’s sole cost and expense, in opposing such disclosure or seeking a protective order or other limitations on disclosure. If the Disclosing Party waives compliance or, after providing the notice and assistance required under this 8.4, the Receiving Party remains required by Law to disclose any Confidential Information, the Receiving Party shall disclose only that portion of the Confidential Information that the Receiving Party is legally required to disclose and, on the Disclosing Party’s request, shall use commercially reasonable efforts to obtain assurances from the applicable court or other presiding authority that such Confidential Information will be afforded confidential treatment.Intellectual Property Rights
9.1. Cova Materials
All right, title, and interest in and to the Cova Materials, including all Intellectual Property Rights therein, are and will remain with Cova and, with respect to Third-Party Materials, the applicable third-party providers own all right, title, and interest, including all Intellectual Property Rights, in and to the Third-Party Materials. Subscriber has no right, license, or authorization with respect to any of the Cova Materials except as expressly set forth in 2.1 or the applicable third-party license, in each case subject to 3.1. All other rights in and to the Cova Materials are expressly reserved by Cova. In furtherance of the foregoing, Subscriber hereby unconditionally and irrevocably grants to Cova an assignment of all right, title, and interest in and to the Resultant Data, including all Intellectual Property Rights relating thereto.
9.2. Subscriber Data
As between Subscriber and Cova, Subscriber is and will remain the sole and exclusive owner of all right, title, and interest in and to all Subscriber Data, including all Intellectual Property Rights relating thereto, subject to the rights and permissions granted in Section 9.3 and any ancillary agreement by and between Subscriber and Cova.
9.3. Consent to Use Subscriber Data
Subscriber hereby irrevocably grants all such rights and permissions in or relating to Subscriber Data as are necessary or useful to Cova, its Subcontractors, and the Cova Personnel to enforce this Agreement and exercise Cova’s, its Subcontractors’, and the Cova Personnel’s rights and perform Cova’s, its Subcontractors’, and the Cova Personnel’s obligations hereunder.Representations and Warranties
10.1. Mutual Representations and Warranties
Each party represents and warrants to the other party that:
it is duly organized, validly existing, and in good standing as a corporation or other entity under the Laws of the jurisdiction of its incorporation or other organization;
it has the full right, power, and authority to enter into and perform its obligations and grant the rights, licenses, consents, and authorizations it grants or is required to grant under this Agreement;
the execution of this Agreement by its representative whose signature is set forth at the end of this Agreement has been duly authorized by all necessary corporate or organizational action of such party; and
when executed and delivered by both parties, this Agreement will constitute the legal, valid, and binding obligation of such party, enforceable against such party in accordance with its terms.
10.2. Additional Cova Representations, Warranties, and Covenants
Cova represents, warrants, and covenants to Subscriber that Cova will perform the Services using personnel of required skill, experience, and qualifications and in a professional and workmanlike manner in accordance with generally recognized industry standards for similar services and will devote adequate resources to meet its obligations under this Agreement, provided, however, that the standards set forth in this Section 10.2 shall not be applicable to any third-party proprietary software or open source software that may be included in the Services.
10.3. Additional Subscriber Representations, Warranties, and Covenants
Subscriber represents, warrants, and covenants to Cova that Subscriber owns or otherwise has and will have the necessary rights and consents in and relating to the Subscriber Data so that, as received by Cova and Processed in accordance with this Agreement, they do not and will not infringe, misappropriate, or otherwise violate any Intellectual Property Rights, or any privacy or other rights of any third party or violate any applicable Law.
10.4. DISCLAIMER OF WARRANTIES
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH IN 10.1 AND 10.2, ALL SERVICES AND COVA MATERIALS ARE PROVIDED “AS IS”. COVA SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COVA MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES OR COVA MATERIALS, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET SUBSCRIBER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN SUBSCRIBER AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS.Indemnification
11.1. Subscriber Indemnification
Subscriber shall indemnify, defend, and hold harmless Cova and its Subcontractors and Affiliates, and each of its and their respective officers, directors, employees, agents, successors, and assigns (each, a “Cova Indemnitee“) from and against any and all Losses incurred by such Cova Indemnitee resulting from any Action by a third party (other than an Affiliate of a Cova Indemnitee) that arise out of or result from, or are alleged to arise out of or result from:
Subscriber Data, including any Processing of Subscriber Data by or on behalf of Cova in accordance with this Agreement;
any other materials or information (including any documents, data, specifications, software, content, or technology) provided by or on behalf of Subscriber or any Authorized User, including Cova’s compliance with any specifications or directions provided by or on behalf of Subscriber or any Authorized User to the extent prepared without any contribution by Cova;
allegation of facts that, if true, would constitute Subscriber’s breach of any of its representations, warranties, covenants, or obligations under this Agreement; or
negligence or more culpable act or omission (including recklessness or willful misconduct) by Subscriber, any Authorized User, or any third party on behalf of Subscriber or any Authorized User, in connection with this Agreement.
11.2. Indemnification Procedure
Cova shall promptly notify Subscriber in writing of any Action for which Cova believes it is entitled to be indemnified pursuant to Section 11.2, as the case may be. The party seeking indemnification (the “Indemnitee“) shall cooperate with the other party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor shall promptly assume control of the defense and shall employ counsel of its choice and reasonably acceptable to the Indemnitee to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing. The Indemnitor shall not settle any Action without the Indemnitee’s prior written consent, which shall not be unreasonably withheld or delayed. The Indemnitee’s failure to perform any obligations under this Section 11.2 will not relieve the Indemnitor of its obligations under this Section 11, except to the extent that the Indemnitor can demonstrate that it has been prejudiced as a result of such failure.
If any of the Services or Cova Materials are, or in Cova’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Subscriber’s or any Authorized User’s use of the Services or Cova Materials is enjoined or threatened to be enjoined, Cova may, at its option and sole cost and expense:
obtain the right for Subscriber to continue to use the Services and Cova Materials materially as contemplated by this Agreement;
modify or replace the Services and Cova Materials, in whole or in part, to seek to make the Services and Cova Materials (as so modified or replaced) non-infringing, while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Services and Cova Materials, as applicable, under this Agreement; or
by written notice to Subscriber, terminate this Agreement with respect to all or part of the Services and Cova Materials, and require Subscriber to immediately cease any use of the Services and Cova Materials or any specified part or feature thereof.
11.4. Sole Remedy
THIS SECTION 11 SETS FORTH SUBSCRIBER’S SOLE REMEDIES AND COVA’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES AND COVA MATERIALS OR ANY SUBJECT MATTER OF THIS AGREEMENT INFRINGES, MISAPPROPRIATES, OR OTHERWISE VIOLATES ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.Limitations of Liability
12.1. EXCLUSION OF DAMAGES
IN NO EVENT WILL Cova OR ANY OF ITS LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION, OR DELAY OF THE SERVICES; (c) LOSS, DAMAGE, CORRUPTION, OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) COST OF REPLACEMENT GOODS OR SERVICES; (e) LOSS OF GOODWILL OR REPUTATION; OR (f) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
12.2. CAP ON MONETARY LIABILITY
IN NO EVENT WILL THE AGGREGATE LIABILITY OF COVA AND ITS LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE TOTAL AMOUNT OF SAAS SUBSCRIPTION FEES PAID TO Cova UNDER THIS AGREEMENT IN THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE.Term and Termination
For Cova subscribers who have an existing Software Subscription Agreement with Cova, the term of this Agreement commences as of the Effective Date and will continue in parallel until the termination or expiration of the Software Subscription Agreement, unless terminated earlier pursuant any of the Agreement’s express provisions (“Term“).
For Subscribers without an existing Software Subscription Agreement with Cova, the Term commences as of the Effective Date and will continue for one year, and will automatically renew for an unlimited number of additional one year terms unless terminated earlier pursuant any of the Agreement’s express provisions. A party may stop the automatic renewals if it provides the other party written notice at least 90 days before the end of the Term.
In addition to any other express termination right set forth elsewhere in this Agreement:
Cova may terminate this Agreement, effective on written notice to Subscriber, if Subscriber: (i) fails to pay any amount when due hereunder, and such failure continues more than thirty (30) days after Cova’s delivery of written notice thereof; or (ii) breaches any of its obligations under Section 3.1, Section 6.3, or Section 8;
Either party may terminate this Agreement, effective on written notice to the other party, if the other party materially breaches this Agreement, and such breach: (i) is incapable of cure; or (ii) being capable of cure, remains uncured for thirty (30) days after the non-breaching party provides the breaching party with written notice of such breach; and
Either party may terminate this Agreement, effective immediately upon written notice to the other party, if the other party: (i) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (ii) files, or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency Law; (iii) makes or seeks to make a general assignment for the benefit of its creditors; or (iv) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.
13.3. Effect of Termination or Expiration
Upon the termination of this Agreement, except as expressly otherwise provided in this Agreement:
all rights, licenses, consents, and authorizations granted by either party to the other hereunder will immediately terminate;
Cova shall immediately cease all use of any Subscriber Data or Subscriber’s Confidential Information and (i) promptly return to Subscriber, or at Subscriber’s written request and at Subscriber’s sole cost, destroy, all documents and tangible materials containing, reflecting, incorporating, or based on Subscriber Data or Subscriber’s Confidential Information; and (ii) permanently erase all Subscriber Data and Subscriber’s Confidential Information from all systems Cova directly or indirectly controls, provided that, for clarity, Cova’s obligations under this Section 13.4(b) do not apply to any Resultant Data;
Subscriber shall immediately cease all use of any Services or Cova Materials and (i) promptly return to Cova, or at Cova’s written request destroy and at Cova’s sole costs, all documents and tangible materials containing, reflecting, incorporating, or based on any Cova Materials or Cova’s Confidential Information; and (ii) permanently erase all Cova Materials and Cova’s Confidential Information from all systems Subscriber directly or indirectly controls; and (iii) certify to Cova in a signed and written instrument that it has complied with the requirements of this Section 13.3;
notwithstanding anything to the contrary in this Agreement, with respect to information and materials then in its possession or control: (i) the Receiving Party may retain the Disclosing Party’s Confidential Information and Subscriber Data solely to the extent and for so long as required by applicable Law; (iv) Cova may also retain Subscriber Data in its backups, archives, and disaster recovery systems until such Subscriber Data is deleted in the ordinary course; and (v) all information and materials described in this Section 13.3(d) will remain subject to all confidentiality, security, and other applicable requirements of this Agreement;
Cova may disable all Subscriber and Authorized User access to the Cova Materials;
if this Agreement is terminated under 13.2 (3), Subscriber will be relieved of any obligation to pay any Fees attributable to the period after the effective date of such termination and Cova will: (i) refund to Subscriber Fees paid in advance for Services that Cova has not performed as of the effective date of termination; and (ii) pay to Subscriber any unpaid Service Credits to which Subscriber is entitled;
if the Cova or Subscriber terminates this Agreement pursuant to Section 13.2(1) or the Section 13.2(2), all Fees that would have become payable had the Agreement remained in effect until expiration of the Term will become immediately due and payable, and Subscriber shall pay such Fees, together with all previously accrued but not yet paid Fees, on receipt of Cova’s invoice therefore; and
if Subscriber requests in writing at least thirty (30) days prior to the effective date of termination, subject to Section 13.2(d), Cova shall, within sixty (60) days following such termination, deliver to Subscriber the then most recent version of Subscriber Data maintained by Cova (excluding any Resultant Data), provided that Subscriber has at that time paid all Fees then outstanding and any amounts payable after or as a result of such expiration or termination, including any expenses and fees, on a time and materials basis, for Cova’s services in transferring such Subscriber Data.
13.4. Surviving Terms
The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement: Section 3.1, Section 7, Section 8, Section 10.4, Section 11, Section 12, Section 13.3, this Section 13.4, and Section 14.Miscellaneous
14.1. Further Assurances
On a party’s reasonable request, the other party shall, at the requesting party’s sole cost and expense, execute and deliver all such documents and instruments, and take all such further actions, as may be necessary to give full effect to this Agreement.
14.2. Relationship of the Parties
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement shall be construed as creating any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party shall have authority to contract for or bind the other party in any manner whatsoever.
14.3. Public Announcements
Neither party shall issue or release any announcement, statement, press release, or other publicity or marketing materials relating to this Agreement or, unless expressly permitted under this Agreement, otherwise use the other party’s trademarks, service marks, trade names, logos, domain names, or other indicia of source, association, or sponsorship, in each case, without the prior written consent of the other party, which consent shall not be unreasonably withheld, provided, however, that Cova may, without Subscriber’s consent, include Subscriber’s name and other indicia in its lists of Cova’s current or former Subscribers of Cova in promotional and marketing materials.
14.4. Logo/Mark Display
At all times during the Term of this Agreement, Cova shall have the right to display its trademark, service marks, trade names, logo, or mark on Subscriber’s site and viewable by the general public, and no smaller than 13 pt font size.
Except as otherwise expressly set forth in this Agreement, any notice, request, consent, claim, demand, waiver, or other communications under this Agreement have legal effect only if in writing and addressed to a party as follows (or to such other address or such other person that such party may designate from time to time in accordance with this Section 14.5, or via electronic mail to firstname.lastname@example.org.
For purposes of this Agreement: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to this Agreement as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. Unless the context otherwise requires, references in this Agreement: (x) to sections, exhibits, schedules, attachments, and appendices mean the sections of, and exhibits, schedules, attachments, and appendices attached to, this Agreement; (y) to an agreement, instrument, or other document means such agreement, instrument, or other document as amended, supplemented, and modified from time to time to the extent permitted by the provisions thereof; and (z) to a statute means such statute as amended from time to time and includes any successor legislation thereto and any regulations promulgated thereunder. The parties intend this Agreement to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. The exhibits, schedules, attachments, and appendices referred to herein are an integral part of this Agreement to the same extent as if they were set forth verbatim herein.
The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.
14.8. Entire Agreement
This Agreement, together with any other documents incorporated herein by reference, constitutes the sole and entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, with respect to such subject matter.
Subscriber shall not assign or otherwise transfer any of its rights, or delegate or otherwise transfer any of its obligations or performance under this Agreement, in each case whether voluntarily, involuntarily, by operation of law, or otherwise, without Cova’s prior written consent. For purposes of the preceding sentence, and without limiting its generality, any merger, consolidation, sale of all or substantially all of Subscriber’s assets, change of control (sale of a controlling interest of Subscriber’s securities), or reorganization involving Subscriber (regardless of whether Subscriber is a surviving or disappearing entity) will be deemed to be a transfer of rights, obligations, or performance under this Agreement for which Cova’s prior written consent is required. No assignment, delegation, or transfer will relieve Subscriber of any of its obligations or performance under this Agreement. Any purported assignment, delegation, or transfer in violation of this Section 14.9 is void. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective successors and permitted assigns.
14.10. Force Majeure
14.10.1. No Breach or Default
In no event will Cova be liable or responsible to Subscriber, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, (except for any obligations to make payments), when and to the extent such failure or delay is caused by any circumstances beyond Cova reasonable control (a “Force Majeure Event“), including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, embargoes or blockades in effect on or after the date of this Agreement, national or regional emergency, epidemics or pandemics (such as the novel COVID-19 virus), government orders and lockdowns, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of Law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation. Either party may terminate this Agreement if a Force Majeure Event continues substantially uninterrupted for a period of sixty (60) days or more.
14.10.2. Affected Party Obligations
In the event of any failure or delay caused by a Force Majeure Event, Cova shall give prompt written notice to Subscriber stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
14.11. No Third-Party Beneficiaries
This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
14.12. Amendment and Modification; Waiver
No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each party. No waiver by any party of any of the provisions hereof shall be effective unless explicitly set forth in writing and signed by the party so waiving. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor shall any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal, or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to affect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
14.14. Governing Law; Submission to Jurisdiction
This Agreement is governed by and construed in accordance with the internal laws of the Province of Ontario without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the Province of Ontario. Any dispute, claim or controversy arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, shall be determined by arbitration in Toronto, Ontario, before one (1) arbitrator. Judgment on the Award may be entered in any court having jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction.
14.15. Waiver of Jury Trial
Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to this Agreement or the transactions contemplated hereby.
14.16. Equitable Relief
Subscriber acknowledges and agrees that a breach or threatened breach by Subscriber of any of its obligations under Section 8, Section 3.1, Section 4.3, or Section 6.3, would cause Cova irreparable harm for which monetary damages would not be an adequate remedy and that, in the event of such breach or threatened breach, Cova will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity, or otherwise.
14.17. Attorneys’ Fees
In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party against the other party arising out of or related to this Agreement, the prevailing party is entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
Additional information on Launch Protocol and Scope can be found here.