COLLAGE SOFTWARE-AS-A-SERVICE AGREEMENT
This Collage software-as-a-service agreement (the “Agreement”) is an agreement between the person visiting, browsing, accessing or otherwise using (the term “use” will refer to any of the foregoing and the term “using” will have a corresponding meaning) the Platform (“Customer”) and Collage Technologies Inc. (“Collage”, Collage and Customer, the “Parties” and each, a “Party”), and is entered into the earlier of: (A) the date Customer first uses any part of the Platform; and (B) the date Customer agrees to be bound by this Agreement (the “Effective Date”).
BY USING ANY ELEMENT OF THE PLATFORM (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(j). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE PLATFORM, INCLUDING USE OF ANY PART THEREOF. CUSTOMER REPRESENTS AND WARRANTS TO COLLAGE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE PLATFORM ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO COLLAGE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.
- “Customer Data” means any data, information, content, records, and files that Customer loads, transmits to or enters into the Platform or otherwise provides to Collage, and any data, information, content, records and files that the Platform obtains from Customer’s servers or systems or from third parties on Customer’s behalf, including any and all intellectual property rights in any of the foregoing.
- “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, adaptations, and results from processing (including analyses, reports, databases, datasets, recommendations, and visual representations) in any form or medium, and “Modify” has a corresponding meaning.
- “Personal Information” means information about an identifiable individual.
- “Platform” means: (i) the software-as-a-service platform offered by Collage to provide human-resources and benefits management services; (ii) the Website; and (iii) all other software, hardware, and systems used by Collage to host and make the Platform available for Customer’s use and access.
- “Website” means any websites used by Collage to make the Platform available, and includes the websites located at [www.butterhr.com], [www.collage.hr], and [www.collage.co].
2. Platform Availability.
- Provisioning of the Platform. Subject to Customer’s compliance with the terms and conditions of this Agreement, Collage will make the Platform available to Customer and Users on the terms and conditions set out in this Agreement.
- Limitation, Suspension, or Termination of Access; Platform Upgrades and Scheduled Downtime. Collage may, at its discretion and without notice: (i) suspend, terminate, or limit Customer’s access to or use of the Platform or any component thereof; or (ii) Modify the Platform. Collage will use commercially reasonable efforts to provide reasonable advance notice of such suspension, termination, or limitation.
3. Rights to Use Customer Data.
Subject to the terms and conditions of this Agreement, Customer grants (and if applicable, will cause each User to grant) to Collage a non-exclusive, royalty-free, irrevocable, fully paid-up, and worldwide right and license during the Term to reproduce, perform, Modify, develop, access, collect, store and use all Customer Data, including any data, information or other content forming part thereof, in connection with this Agreement.
4. Reservation of Rights.
Collage expressly reserves all rights, title, and interest in, and Customer will not acquire any right, title or interest in: (i) the Platform (or any part thereof) and any other materials or content provided by Collage under this Agreement, including any and all Modifications to any of the foregoing; and (ii) all intellectual property rights in any of the foregoing (clauses (i) and (ii) are collectively, the “Collage Property”). All rights, title and interest in the Collage Property will remain with Collage (or Collage’s third party suppliers, as applicable). For greater certainty, the Collage Property is licensed and not “sold” to Customer.
6. User Account for Mobile Software; Customer Restrictions.
- User Accounts. Upon Customer’s request, Collage may issue one administrator account (the “Administrator Account”) to Customer that enables Customer to further issue user accounts (the “User Account”) to all individuals who are an employee or contractor of Customer that Customer wishes to have access to and use of the Platform (each, a “User”), whether directly by creating User Accounts on the Platform or indirectly by directing Users to sign up with Collage on the Website. Users may only use the Platform through their User Account. Customer is responsible for the compliance by Users with this Agreement, and any and all activity occurring under their User Accounts, including access to and use of the Platform. Customer will not allow Users to share their User Account with any other person. Customer will promptly notify Collage of any actual or suspected unauthorized use of the Platform. Collage reserves the right to suspend, deactivate, or replace the Administrator Account or any User Account if it determines that the Administrator Account or any User Account may have been used for an unauthorized purpose.
- Customer Restrictions. Without limiting the generality of any of the foregoing, Customer will not, and will not permit any other person (including any Users) to:
- use the Platform other than as permitted by this Agreement;
- use the Platform to upload, collect, transmit, store, use, disclose or process, or ask Collage to obtain from third parties or perform any of the above with respect to, any Customer Data: (A) that Customer or the applicable User does not have the lawful right to upload, collect, transmit, store, use, disclose, process, copy, transmit, distribute and display; (B) in a manner that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity); (C) that is tortious, defamatory, obscene, or offensive, or that violates, or encourages any conduct that may violate, any applicable laws or would give rise to civil or criminal liability;
- use any data mining, robots, or similar data gathering or extraction methods, or copy, Modify, reverse engineer, reverse assemble, disassemble, or decompile the Platform or any part thereof or otherwise attempt to discover any source code; or
- use the Platform for the purpose of building a similar or competitive product or service.
7. Email and Web Support.
Customer will have access to Collage’s technical support through email at [Support@Collage.co].
8. Confidential Information
- Definitions. For purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient” and the Party disclosing such information will be the “Discloser” and “Confidential Information” means any and all information of Discloser disclosed by Discloser to Recipient or otherwise coming into the possession of Recipient during the Term that is marked as “confidential” or that a reasonable person would understand to be confidential; provided that Discloser’s Confidential Information does not include: (i) information already known or independently developed by Recipient outside the scope of this relationship by personnel not having access to any Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations. Notwithstanding the foregoing, the terms and conditions of this Agreement and all Collage Property (including any part thereof), whether marked as “confidential” or not, will be Collage’s Confidential Information and will not be Customer’s Confidential Information.
- Confidentiality Covenant. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose such Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Recipient will be deemed to have discharged its confidentiality obligations under this Section 8 (Confidential Information) if Recipient uses the same degree of care in safeguarding the Confidential Information of Discloser as it uses in protecting its own confidential information of a similar nature from unauthorized disclosure.
- Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its employees, accountants, internal and external auditors, legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services related to Collage’s business; or (iii) in the case of Collage, to potential assignees, acquirers or successors of Collage if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Collage.
9. Information Regarding Benefits or Insurance Service Providers.
- The Platform may provide Customer with information or referrals with respect to engaging the services of third parties for the provision of benefits or insurance services (such third parties, the “Benefits or Insurance Service Provider”). Customer may separately enter into an agreement with a Benefits or Insurance Service Provider on such terms and conditions as may be agreed between Customer and that Benefits or Insurance Service Provider.
- If Customer engages the services of a Benefits or Insurance Service Provider, Customer acknowledges that Customer is engaging directly with the Benefits or Insurance Service Provider it selects and not with Collage, and that Collage is not a party to and will be in no way responsible for the performance of either Customer or the Benefits or Insurance Service Provider.
- Collage does not make any representations or warranties of any kind in respect of any Benefits or Insurance Service Provider and Customer acknowledges that Collage is not an agent or representative of Customer or any Benefits or Insurance Service Provider. Customer is responsible for managing, inspecting, accepting and paying for services and deliverables provided under any agreements with Benefits or Insurance Service Providers.
10. Warranty; Disclaimer; Indemnnity.
- Customer Warranty. Customer represents and warrants to, and covenants with Collage that the Customer Data will only contain Personal Information in respect of which Customer has obtained all applicable third party consents, authority and permissions, and has made all applicable third party disclosures (including to each User), in each case as required by applicable laws, regarding all collection, storage, access, use, disclosure and transmission of Personal Information.
- Benefits or Insurance Service Provider Disclaimer. COLLAGE MAKES NO GUARANTEES ABOUT THE AVAILABILITY OF SPECIFIC BENEFITS OR INSURANCE SERVICE PROVIDERS OR THE SERVICES THEY PROVIDE. WITHOUT LIMITING THE FOREGOING, COLLAGE MAKES NO GUARANTEES ABOUT ANY BENEFITS OR INSURANCE SERVICE PROVIDER’S ABILITY TO FULFILL ITS OBLIGATIONS WITH RESPECT TO ITS AGREEMENT WITH CUSTOMER, INCLUDING, WITHOUT LIMITATION, THE SUITABILITY OF ANY BENEFITS OR INSURANCE SERVICE PROVIDER TO PERFORM ANY SERVICES IN A WORKMAN-LIKE OR PROFESSIONAL MANNER.
- GENERAL DISCLAIMER. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE PLATFORM (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY COLLAGE TO CUSTOMER ARE PROVIDED “AS IS”, “AS AVAILABLE”.
- Indemnity. Customer will defend, indemnify and hold harmless Collage, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Users) liability (including damages, recoveries, deficiencies, interest, penalties and reasonably legal fees), directly or indirectly arising from or in connection with, or relating to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; (iii) use of the Platform (or any part thereof) by Customer or any User in combination with any third party software, application or service; (iv) misrepresentation, criminal behaviour or gross negligence on the part of Customer or any User; or (v) any actual or alleged infringement, violation or misappropriation of the rights of any person (including intellectual property or privacy rights) as a result of Customer’s or any User’s use of the Platform (or any part thereof) contrary to the terms of this Agreement. Customer will fully cooperate with Collage in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Collage.
BENEFITS OR INSURANCE SERVICE PROVIDERS ARE INDEPENDENT CONTRACTORS AND NOT CONTRACTORS, AGENTS OR EMPLOYEES OF COLLAGE. COLLAGE IS NOT LIABLE FOR THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, CONDITIONS, BREACHES OR NEGLIGENCE OF ANY BENEFITS OR INSURANCE SERVICE PROVIDER OR FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM AND TAKES NO RESPONSIBILITY WHATSOEVER RELATED TO ANY AGREEMENTS ENTERED INTO BETWEEN CUSTOMER AND ANY BENEFITS OR INSURANCE SERVICE PROVIDER.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, COLLAGE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. COLLAGE DOES NOT WARRANT THAT THE PLATFORM (OR ANY PART THEREOF) WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE, OR THAT ALL ERRORS CAN OR WILL BE CORRECTED. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, COLLAGE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE PLATFORM (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
11. Limitation of Liabilities.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF COLLAGE IN CONNECTION WITH OR UNDER THIS AGREEMENT EXCEED $100. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL COLLAGE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL COLLAGE BE LIABLE TO CUSTOMER OR ANY USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) ANY COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE, GROSS NEGLIGENCE, FUNDAMENTAL BREACH, BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
12. Term and Termination.
- Term. This Agreement will commence on the Effective Date and continue to be in effect until terminated in accordance with its terms (the “Term”).
- Termination For Convenience. Either party may terminate this Agreement at any time by providing advance written notice of not less than 14 days to the other Party.
- Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within five days after receipt of notice of such breach to correct such material breach or to commence corrective action reasonably acceptable to the aggrieved Party and proceed with due diligence to completion, in each case unless the material breach is not capable of being cured.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Right to Use Customer Data), Section 4 (Reservation of Rights), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(d) (Survival), and Section 13 (General Provisions).
13. General Provisions.
- Notices. Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or two days after being sent by first class mail postage prepaid to the official contact designated by the Parties and immediately after being received by the other Party’s server. Notices must be in writing and sent: (i) if to Collage, to the following address:
- Assignment. Customer will not assign this Agreement to any third party without Collage’s prior written consent. Collage may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. Any assignment in violation of this Section will be void. The terms of this Agreement will be binding upon permitted assignees. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
- Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
- Construction. Except as otherwise provided in this Agreement, the Parties rights and remedies under this Agreement are cumulative. The term “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Collage in this Agreement means the right of Collage to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond Collage’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Collage employees), Internet service provider failures or delays, or the unavailability or Modification by third parties of third party websites.
- Severable. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Customer’s relationship to Collage is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Collage.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all other communications, whether written or oral.
- Amendments. Subject to the following sentence, no amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, COLLAGE MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY: (I) GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT; OR (II) POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY COLLAGE, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
100-862 Richmond St. W, Toronto, ON M5C1J5
and (ii) if to Customer, to the current postal or email address that Collage has on file with respect to Customer. Collage may change its contact information by posting the new contact information on the Collage Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Collage through the Collage Platform current at all times during the Term.