Last Updated: September 19th, 2018
PLEASE CAREFULLY READ THIS AGREEMENT WHICH CREATES A LEGAL AGREEMENT BETWEEN YOU (THE “END USER” OR “YOU”) AND HOCKEYSTICK.CO INC. (‘HOCKEYSTICK”). THESE TERMS GOVERN YOUR USE OF THE SERVICES, SOFTWARE AND WEBSITE PROVIDED BY HOCKEYSTICK (COLLECTIVELY, THE “SERVICES”). IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT DO NOT USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
Fund managers, organizations or other third parties that wish to use the Services and/or make the Services available for use by their portfolio companies, must separately enter into a written agreement with us (in either case, a “Master Services Agreement”). That Master Services Agreement permits those portfolio companies to access and use the Services through their end users. If you have been invited by a fund manager or another organization, you acknowledge and agree that certain additional terms apply to your use of the Services and such terms will be notified to you by the organization that enrolled you or your company to use the Services.
We may, from time to time, modify this Agreement. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified Agreement, you must stop using the Services. The updated Agreement will take effect upon its posting and will apply on a go-forward basis and your continued use of the Services after any such update constitutes your binding acceptance of such changes.
In this Agreement the following capitalized terms have the following meanings:
“Confidential Information” means any and all information disclosed by either party to the other which is marked "confidential" or "proprietary", or which the recipient knows or has reason to know is regarded by the disclosing party as such. "Confidential Information" does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; or (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party's prior written authorization.
“Effective Date” means the date on which End User is first entitled to use the Hockeystick Service through agreeing to these terms through the Hockeystick website and provided that Licensee has already executed an Order Form permitting such use by Licensee and its users;
“End User” means an individual entitled by a Licensee to use the Hockeystick Service;
“End User Data” all electronic data and information, or any derivatives thereof, uploaded, submitted or otherwise transmitted to or through the through Hockeystick Service by End User;
“Fees” means the license fees payable in respect of the Licensed Software and Service;
“Hockeystick Service” means HockeyStick’s web-based software application made available through the Hockeystick platform located at www.hockeystick.co which is capable of communicating information from companies to their shareholders and/or other users and generating data and information with respect to the same;
“Licensee” means the business entity to which a license is granted by Hockeystick for the use by employees and personnel within the business entity of the Hockeystick Service;
“Term” has the meaning given in Section 8; and
“Usage Data” means data collected and generated by Hockeystick Service related to use of Hockeystick Service.
2.1 License Terms. Subject to the terms and conditions of this Agreement and payment of the applicable Fees, Hockeystick grants to End User a non-exclusive, non-transferable license to use the Hockeystick Service as part of Hockeystick Service during the Term. The Hockeystick Service may only be accessed and used by authorized End Users to process End User Data and separate licenses must be purchased for other entities who wish to use the Hockeystick Service. Hockeystick reserves the right to monitor the use of the Hockeystick Service and to charge for additional licenses if use is made of the Hockeystick Service in breach of the license restrictions in this section 2.1. The Hockeystick Service is being licensed; not sold. End User acknowledges and agrees that title in and rights to the Hockeystick Service remains exclusively with Hockeystick and its licensors. End User's rights to the Hockeystick Service are strictly limited to those granted in this Agreement.
2.2 End User Responsibilities. End User is responsible for any and all End User Data and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising End User Data can be processed and transmitted via Hockeystick Service. End User shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the End User Data; (ii) safeguard any login details provided for accessing Hockeystick Service and prevent unauthorized access to or use of Hockeystick Service, and shall notify HOCKEYSTICK promptly upon becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using Hockeystick Service.
2.3 Service Use Guidelines. End User shall use Hockeystick Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make Hockeystick Service available to any third party. End User shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Hockeystick Service or Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into Hockeystick Service; (c) remove any proprietary notices, labels, or marks from Hockeystick Service or Hockeystick Service; or (d) access Hockeystick Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of Hockeystick Service.
2.4 Sponsors. If End User receives its right to access the Hockeystick Service through a Sponsor, End User acknowledges and agrees that End User's access to the Hockeystick Service will be royalty-free for the period of time that the Sponsor is responsible for payment of the Fees, Furthermore, Sponsors will have some administrator rights and access to End User Data unless End User opts to upgrade End User's account and pay the required Fees directly to HOCKEYSTICK. In the event that the Fees for Hockeystick Service which were paid by a Sponsor end for whatever reason, HOCKEYSTICK will notify End User and End User will have the option to upgrade to a paid user account with HOCKEYSTICK for continued use of the Hockeystick Service. If End User does not elect to continue under a paid license with HOCKEYSTICK, End User's right to access and use the Hockeystick Service will terminate.
2.5 Support. Any support issues with Hockeystick Service which End User cannot resolve should be notified to Hockeystick. Hockeystick will use commercially reasonable efforts to make Hockeystick Service available during the Term except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond Hockeystick’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, or Internet service provider failures or delays.
3.1 Invoicing and Late Payments. All amounts owing hereunder shall be paid in Canadian Dollars. Hockeystick shall invoice End User (or the Sponsor if applicable) for all fees due under this Agreement (including all fees due pursuant to the exhibits). Invoiced amounts shall be due and payable in full within such thirty (30) days after the date of the invoice. Any amounts not paid within such thirty-day period shall be subject to interest at the lesser of 1.5% per month or the maximum allowed by applicable law, which interest shall be immediately due and payable. All payments to HOCKEYSTICK are non-refundable, unless otherwise provided under this Agreement.
3.2 Taxes. All license fees, fees for services and other payments to Hockeystick are exclusive of any and all taxes, duties or levies assessed by applicable governmental authorities. All such taxes, duties and levies (exclusive of any taxes based upon Hockeystick’s net income) shall be assumed by and paid for by End User, regardless of whether included in any invoice sent to End User at any time by Hockeystick.
3.3 Suspension of Service. If End User's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Hockeystick reserves the right to suspend Hockeystick Service provided to End User, until such amounts are paid in full or terminate Hockeystick Service and this Agreement.
TO THE GREATEST EXTENT PERMITTED BY LAW, THE HOCKEYSTICK SERVICE, SERVICE AND SUPPORT PROVIDED BY HOCKEYSTICK HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY HOCKEYSTICK. HOCKEYSTICK DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HOCKEYSTICK DOES NOT REPRESENT OR WARRANT THAT THE HOCKEYSTICK SERVICE OR SERVICE SHALL MEET ANY OR ALL OF END USER'S PARTICULAR REQUIREMENTS, THAT THE HOCKEYSTICK SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE HOCKEYSTICK SERVICE CAN BE FOUND OR CORRECTED.
INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF HOCKEYSTICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HOCKEYSTICK'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY END USER FOR THE SOFTWARE IN THE SIX MONTHS LEADING UP TO AN EVEN THAT GAVE RISE TO LIABILITY.
6.1 Reservation of Rights. Except for the rights and licenses granted in this Agreement, End User acknowledges and agrees that Hockeystick owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Hockeystick Service, including any and all modifications, derivatives, improvements and enhancements to the same, and Service and grants End User no further licenses of any kind hereunder, whether by implication, estoppel or otherwise.
6.2 License Data. As between Hockeystick and End User, End User shall exclusively own all End User Data. End User hereby grants Hockeystick a non-exclusive, perpetual, royalty-free, worldwide license to copy, translate, adapt, distribute or otherwise use or exploit the End User Data and Usage Data in any medium, mode or format for any lawful purpose, to provide Hockeystick Service, create aggregate statistics, improve Hockeystick Service, provide relevant content to End Users, and to publish benchmark statistics and research, provided that such End User is aggregated and anonymized and does not publicly identify End User or any individual. Any End User Data consisting of personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (“Personal Data” and “GDPR” respectively) to which the GDPR applies, and the processing thereof, shall be governed under the terms and conditions set forth in the Hockeystick’s Data Processing Agreement (“DPA”). A current version of the DPA is available at https://about.hockeystick.co/data-processing-agreement. Without limiting the obligations of End User elsewhere in this Agreement or the DPA, unless otherwise expressly agreed in writing between End User and HockeyStick, End User will not provide or make available to HockeyStick: (i) “special categories of personal data” under the GDPR; or (ii) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which End User or HockeyStick operate.
6.3 Feedback. End User agrees that Hockeystick may freely use any suggestions, feedback or ideas End User may provide to Hockeystick ("Feedback"). By providing any feedback to Hockeystick, End User grants HOCKEYSTICK a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, royalty free, license to use and exploit the Feedback. Without limiting the foregoing, Hockeystick may use End User's Feedback to modify and improve Hockeystick Service or any other current and future services/products, services advertising or marketing materials.
Neither party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations hereunder or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party's Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party's option, all of the disclosing party's Confidential Information.
The term of this Agreement will begin upon the Effective Date and shall continue for as long as End User uses Hockeystick Service under subscription from Hockeystick, unless earlier terminated sooner under this section 8 (the "Term"). Hockeystick may terminate this Agreement in the event of any breach by End User if such breach has not been cured within thirty (30) days of notice to End User. No termination of this Agreement will entitle End User to a refund of any amounts paid by End User to Hockeystick or affect any obligations End User may have to pay any outstanding amounts owing to Hockeystick. End User's rights to use and access Hockeystick Service will immediately terminate upon termination or expiration of this Agreement. Sections 1, 4-7, 8 and 9 of this Agreement shall survive the expiration or termination of this Agreement.
9.1 Governing Law; Venue. This Agreement is governed by the laws of the Province of Ontario, Canada and the Federal laws of Cana applicable therein without reference to its conflict of laws principles. Any dispute or action between End User and Hockeystick arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ontario, Canada. The United Nations Conventions on Contracts for the International Sale of Goods and any legislation enacted for same do not apply.
9.2 Entire Agreement; Severability. This Agreement, including all terms incorporated by reference into it, constitutes is the entire agreement between End User and Hockeystick and supersedes any other communications with respect to its subject matter. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect.
9.3 Assignment. End User may not assign this Agreement without the prior written consent of Hockeystick. Hockeystick may transfer or otherwise freely assign its rights and/or obligation and/or this Agreement on written notice to End User.
9.4 No Waiver. Any delay by a party in enforcing the provisions of this Agreement shall not be deemed to be a waiver of such party's rights and shall not prejudice such party's right to take subsequent action.
9.5 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.