Backup terms of service
Backup Terms of Service
PLEASE READ THESE TERMS CAREFULLY AS THEY MAY HAVE CHANGED FROM THE LAST TIME YOU VISITED THIS PAGE (the “Site”).
These Terms of Service, together with any order form, statement of work, insertion order or any other document that incorporates these Terms of Service by reference or by attachment (each an “Order Form”), form the terms and conditions relating to the service identified on the Order Form (that service, the “Service”; these Terms of Service together with Order Form(s) shall be referred collectively as “Terms”).
The acceptance of the Order Form creates an agreement between the party listed on the Order Form (“Customer”) and Brightmark Inc. (“Brightmark”). If Customer’s Affiliates (as defined below) use the Service, such Affiliates shall be bound to these Terms and Customer represents that it has the authority to bind them. Any of Customer’s and its Affiliates’ employees, contractors or agents who use the Service are also subject to these Terms (those employees, contractors and agents, the “Service Users”).
Definitions and Interpretation
- Definitions. In addition to the terms otherwise defined in these Terms, the following terms shall have the meaning set out below:
- “Affiliate” has the meaning attributed to it in the Business Corporations Act (Ontario), as amended from time to time. For the purpose of this definition, control shall mean more than 50% interest in the voting securities.
- “Business Day” means every day except Saturday, Sunday and any statutory holidays in the province of Ontario.
- “Fee” is defined in Section 5.1.
- “Fee Adjustment” is defined in Section 5.2.
- “Party” shall refer to (i) Customer, or (ii) Brightmark, and “Parties” shall refer to both (i) and (ii).
- “Representatives” is defined in Section 3.2(a).
- Headings. Headings of sections are inserted for convenience of reference only and do not affect the construction or interpretation of these Terms.
- “Includes” or “Including”. Where the word “including” or “includes” is used in these Terms, it means “including (or includes) without limitation”.
- No Strict Construction. The language used in these Terms is the language chosen by the Parties to express their mutual intent, and no rule of strict construction shall be applied against any Party.
- Number and Gender. Unless the context otherwise requires, words importing the singular include the plural and vice versa and words importing gender include all genders.
- Time Periods. Unless otherwise specified, time periods within or following which any payment is to be made or act is to be done shall be calculated by excluding the day on which the period commences and including the day on which the period ends and by extending the period to the next Business Day following if the last day of the period is not a Business Day.
- “Written” or “in writing”. Unless expressly stated otherwise, where any notice, demand, consent or communication is required “in writing” or in written form, either Party may provide such notice, demand, consent or communication in written form and delivered by courier, registered mail or e-mail.
- Service may encompass access to and use of a third party product that Brightmark is reselling by working with the owner and/or operator of such third party product (that third party product, the “Product”; that owner and/or operator, the “Product Owner”). The Product may also depend on a separate third-party platform owned and/or operated by another third party (that third-party platform, the “Platform”; that third party, the “Platform Owner”). The Product and the Platform are not developed, owned, operated or controlled by Brightmark and Brightmark is not responsible for the Product or the Platform. Unless the Order Form, or Brightmark and Customer have entered into a separate agreement that, includes services from Brightmark for the provision of support, setup or training pertaining to the Product or the Platform (those support, setup or training services, the “Ancillary Services”), any requests, issues or inquiries relating to the Product or the Platform must be dealt with the respective owners or operators.
- These Terms apply in addition to any terms and conditions imposed by the Product Owner or the Platform Owner via the Product, the Platform or otherwise.
- Brightmark. Brightmark’s responsibilities are as follows:
- Brightmark shall use commercially reasonable efforts to work with the Product Owner to make the Product available for Customer and Service Users.
- If the Order Form includes any Ancillary Services, Brightmark shall use commercially reasonable efforts to perform those Ancillary Services.
- Customer. Customer’s responsibilities are as follows:
- Customer is responsible for its Affiliates and the Service Users (collectively, the “Representatives”). Customer agrees to ensure that its Representatives comply with these Terms and all applicable laws.
- Customer (and shall cause its Representatives to comply with) all terms and conditions applicable to the Product and the Platform.
- Customer is responsible for procuring and maintaining the necessary license(s) and/or right(s) to use the Platform and configuring the Product to work with the Platform.
- Customer shall provide, or permit Brightmark to access, the necessary information for Brightmark to verify the number of Service Users on a monthly or quarterly basis, at the discretion of Brightmark.
Term and Termination
- Subscription Term. The subscription term of each Order Form shall be stated in the applicable Order Form (each subscription term, including all the renewals, the “Subscription Term”). If an Order Form provides for auto-renewal, either Party may notify the other Party in writing of its intention not to renew that Order Form at least thirty (30) days prior to the expiration of the current subscription term.
- Terms of Service. These Terms of Service shall apply to all the Order Forms during the Subscription Terms. These Terms of Service will be terminated when all Subscription Terms have expired or terminated.
- Termination for Breach. If a Party materially breaches the Terms, which remains uncured for fifteen (15) days after providing written notice detailing the material breach to the breaching Party, the other Party may terminate the applicable Order Form.
- Termination by Brightmark. If Brightmark is unable to make the Product available to Customer, it may terminate the applicable Order Form by providing Customer with thirty (30) days’ written notice.
- Effect of Termination. Upon termination of an Order Form or these Terms of Service,
- If an Order Form is not renewed in accordance with Section 4.1, or an Order Form is terminated pursuant to Section 4.3, Customer shall pay all Fees and Fee Adjustments owing to Brightmark under the applicable Order Form immediately. Brightmark will not issue any refund for any Fees or Fee Adjustments already paid;
- If an Order Form is terminated pursuant to Section 4.4, Customer’s sole remedy shall be the refund of any Fees and Fee Adjustments prepaid to Brightmark under that applicable Order Form, pro-rated to the date of termination; and
- Parties shall comply with Section 6.2(b) of these Terms of Service.
- Fee. Fees for the Service is stated in the applicable Order Form (“Fees”). For Fees that include fees based on a number of Service Users, that number shall be considered the minimum number of Service Users that Customer is committing to on an annual basis (that minimum number, the “Minimum Number”). Unless stated otherwise in an Order Form, the number of actual Service Users at time of renewal shall become the new Minimum Number for the renewal Subscription Term and the Order Form shall be deemed to have been amended to reflect the new Minimum Number with the Fees reflected accordingly.
- Adjustments. On a monthly or quarterly basis, as determined by Brightmark, Brightmark will determine the number of actual Service Users pursuant to Section 3.2(d). If the number of actual Service Users for the applicable period exceeds the Minimum Number, Brightmark will invoice the difference (that difference, the “Fee Adjustment”). If the number of actual Service Users for the applicable period is below the Minimum Number, no adjustments will be made and Customer remains responsible for the Fees.
- Invoice and Payment. Brightmark will invoice Customer (i) for the Fees on an annual basis, in advance of the Service being provided and (ii) for the Fee Adjustment on a monthly or quarterly basis, as applicable. Customer agrees to pay the invoice within fifteen (15) days of receiving the invoice. A late charge of 1.5% per month may be applied to all undisputed overdue amounts.
- Confidential Information.
- “Confidential Information” means any non-public information disclosed to Customer (“Receiving Party”) during the Subscription Terms by Brightmark (“Disclosing Party”), either directly or indirectly, in writing, orally or visually, as a consequence of these Terms. Receiving Party may disclose the Confidential Information to Representatives on a need-to-know basis, solely to use the Services in accordance with these Terms (the “Purpose”). Receiving Party shall cause its Representatives that have been disclosed the Confidential Information to observe the terms set out in this Section 6 (“Confidentiality Provisions”) and shall be responsible for any breach of these Confidentiality Provisions by its Representatives.
- Confidential Information shall not include information that:
- is or subsequently becomes publicly available without breach of any obligation owed to Disclosing Party;
- became known to Receiving Party without confidentiality restrictions, prior to Disclosing Party’s disclosure of such information to Receiving Party pursuant to these Terms, as shown by Receiving Party’s records;
- became known to Receiving Party from a source other than Disclosing Party other than by the breach of a confidentiality agreement or a contractual, legal or fiduciary obligation; or
- is independently developed by Receiving Party without any use of or reference to the Confidential Information. Burden of proving that information is not Confidential Information rests with Receiving Party.
- Receiving Party shall:
- not disclose, reproduce, summarize and/or distribute the Confidential Information, except as otherwise permitted in these Confidentiality Provisions;
- use the Confidential Information solely for the Purpose; and
- make the same effort to safeguard the Confidential Information as it would for its own Confidential Information, but in no case less than reasonable care.
- Upon termination of these Terms or at Disclosing Party’s request, Receiving Party shall return all Confidential Information, or at Receiving Party’s option, certify destruction of same within 10 Business Days of the request.
- The disclosure restrictions contained in this Section 6 do not apply to disclosure that is required (i) by law or any order of any competent court or other authority; or (ii) pursuant to the rules of any relevant stock exchange; unless Receiving Party is permitted or required by law, order or such rule to refrain from making such disclosure for confidentiality or other reasons. Prior to making such disclosure, Receiving Party shall, to the extent not prohibited by such law, order or rule:
- give Disclosing Party prompt notice of the requirement and the proposed content of any disclosure;
- at Disclosing Party’s request and expense, co-operate with Disclosing Party in limiting the extent of the disclosure and in obtaining an appropriate protective order or pursuing such legal action, remedy or assurance as Disclosing Party deems necessary to preserve the confidentiality of the Confidential Information; and
- if a protective order or other remedy is not obtained or Disclosing Party fails to waive compliance with these Confidentiality Provisions, disclose only that portion of the Confidential Information that Receiving Party is, on the advice of counsel, required to disclose and exercise commercially reasonable efforts to obtain reliable assurance that confidential treatment is given to the Confidential Information disclosed.
- All Confidential Information shall at all times remain the personal property of Disclosing Party. Nothing in these Confidentiality Provisions or in the disclosure of any Confidential Information confers any interest in the Confidential Information to Receiving Party or its Representatives.
- Receiving Party acknowledges that the disclosure of any aspect of the Confidential Information contrary to these Confidentiality Provisions will give rise to irreparable injury to Disclosing Party inadequately compensable in damages. Disclosing Party may, in addition to any other remedy, enforce the performance of these Confidentiality Provisions by way of injunction or specific performance upon application to a court of competent jurisdiction without proof of actual damages (and without the requirement of posting a bond or other security) and, notwithstanding that damages may be readily quantifiable, Receiving Party agrees not to plead sufficiency of damages as a defence in any such proceeding. The rights and remedies provided herein are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or equity. All such rights and remedies may be exercised from time to time, and as often and in such order as Disclosing Party deems expedient. Receiving party shall immediately notify Disclosing Party of any breach of these Confidentiality Provisions.
Indemnification, Disclaimers and LImitation of LIabilities
- Indemnification. Customer will indemnify, defend and save harmless Brightmark, its Affiliates and their officers, directors and employees from and against all losses, damages, costs and expenses (including reasonable legal fees and disbursements) (collectively, “Losses”) resulting from any claim, judgment or proceeding (collectively, “Claims”) brought by a third party and arising in connection with (i) the Service Users’ access and use of the Product or the Platform, or (ii) Customer’s or its Affiliates’ breach of these Terms.
- Disclaimers. Neither the product nor the platform is developed, owned, operated or controlled by Brightmark. It is the customer’s responsibility to obtain the necessary representations and warranties with respect to the product and the platform from the product owner or platform owner, as applicable. Brightmark:
- Disclaims all representations and warranties (expressed or implied), including warranties of merchantability, fitness for a particular purpose, warranty of title, and freedom from infringement, with respect to the product and the platform, and
- makes no representation or warranty and disclaims any representation or warranty that the product or the platform will meet any of the customer’s or its representatives’ requirements, or will be uninterrupted, timely, secure or error-free
- Limitation of Liabilities. To the extent permitted by law, Brightmark and its representatives shall not be liable for any indirect, special, punitive, incidental or consequential damages, including damages for loss of profits, loss of revenue or failure to realize expected savings, even if Brightmark or its representatives have been advised of the possibility thereof and regardless of the legal or equitable theory upon which the claims is based.
- Brightmark’s and its representatives’ total liability arising from or in connection with these terms, whether on a per claim or per aggregate basis (for clarity, aggregate of all order forms), shall be strictly limited to the amount paid to Brightmark by customer in the six months prior to the claim.
- Modification. Brightmark reserves the right to update these Terms of Service from time to time. Brightmark will post the changes to this Site. Customer or Customer’s Representatives’ continued use of the Service constitutes acceptance of the latest Terms of Service.
- Entire Agreement. These Terms constitute the entire agreement between the Parties with respect to the subject matter contained herein and supersedes all previous and contemporaneous agreements, proposals and communications, written or oral, between the Parties. The Parties expressly disclaim any reliance on any and all communications, discussions, proposals and/or agreements (verbal or written) between the Parties. Except as expressly provided herein, there are no other representations, warranties, conditions, other agreements or acknowledgements, whether direct or collateral, express or implied, that form part of or affect these Terms.
- Severability. If any provision of these Terms is held or made invalid or unenforceable for any reason, such invalidity shall not affect the remainder of the Terms, and the invalid or unenforceable provisions shall be replaced by a mutually acceptable provision, which being valid, legal and enforceable comes closest to the original intentions of the Parties hereto and has like economic effect.
- No Assignment. Except as expressly permitted in these Terms, Customer may not assign, transfer or sub-license any of its rights or delegate any of its responsibilities without the written consent of Brightmark.
- Relationship. These Terms do not create a relationship of partnership, joint venture, employment, agency, franchise or other form of agreement or relationship. The Parties shall only be considered as independent contractors.
- No Waiver. Either Party’s failure to enforce any provision or right in these Terms will not be construed as a waiver of any such provision or right. Waiver of any provision or right must be specifically in writing by the waiving Party. Except as expressly stated in the written waiver, a Party’s waiver shall not operate or be construed as a continuous waiver to such provision or right.
- Choice of Law and Forum. These Terms shall be governed by and construed in accordance with the laws of the Province of Ontario, without regard to its conflict of laws principles, and the laws of Canada applicable therein. Any dispute arising from these Terms shall be instituted in the courts of the Province of Ontario, specifically in the City of Toronto. A Party may bring suit against the other Party in a forum other than Ontario, Canada, provided that (A) such suit is solely for an injunction to enforce these Terms and is not for damages; (B) such suit is brought against the other Party in a jurisdiction or forum in which the other Party is doing business; and (C) the other Party is not a resident of Ontario, Canada and would not otherwise be directly subject to an injunction issued by an Ontario, Canada court.
- Notices. Except as otherwise stated in these Terms of Service, all notices hereunder shall be in writing and deemed to be delivered upon (i) the day of personal delivery, (ii) five (5) Business Days after mailing via courier or registered mail, or (iii) first Business Day after sending the e-mail. Notice to Brightmark shall be sent to: Attn: Legal, 275 Renfrew Drive, Suite 209, Markham, ON, L3R 0C8. Notice to Customer shall be sent to the address on the Order Form.
- Survival. Sections 1, 2, 4.5, 6, 7 and 8 shall survive and remain in full force and effect following any termination or expiration of these Terms.