Last Updated: May 24th, 2018
PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE SOFTWARE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT DO NOT USE THE LICENSED SOFTWARE. IF YOU ACCESS OR USE THE LICENSED SOFTWARE, 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.
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.
“Sponsor” means a third party who has agreed with HOCKEYSTICK to pay the Fees for Licensee to use the Licensed Software;
“Effective Date” means the date on which Licensee first subscribes to receive the Service through HOCKEYSTICK's website;
“End User” means an individual who is using the Licensed Software.
“Fees” means the license fees payable in respect of the Licensed Software and Service;
“Licensed Software” means HOCKEYSTICK's web-based Licensed Software application and platform called Hockeystick (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” or “You” 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 Licensed Software;
“Licensee Data” all electronic data and information, or any derivatives thereof, uploaded, submitted or otherwise transmitted to or through the through the Service by Licensee;
“Service” means the provision of access to the Licensed Software by HOCKEYSTICK for the purpose of transmitting and processing Licensee Data and related support and other services; and
“Term” has the meaning given in Section 8.
“Usage Data” means data collected and generated by the Service related to an End User's usage of the Service.
2.1 License Terms. Subject to the terms and conditions of this Agreement and payment of the applicable Fees, HOCKEYSTICK grants to Licensee a non-exclusive, non-transferable license to use the Licensed Software as part of the Service during the Term. The Licensed Software may only be accessed and used by authorized End Users to process Licensee Data and separate licenses must be purchased for other entities who wish to use the Licensed Software. HOCKEYSTICK reserves the right to monitor the use of the Licensed Software and to charge for additional licenses if use is made of the Licensed Software in breach of the license restrictions in this section 2.1. The Licensed Software is being licensed; not sold. Licensee acknowledges and agrees that title in and rights to the Licensed Software remains exclusively with HOCKEYSTICK and its licensors. Licensee's rights to the Licensed Software are strictly limited to those granted in this Agreement.
2.2 Licensee Responsibilities. Licensee is responsible for any and all Licensee Data and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising Licensee Data can be processed and transmitted via the Service. Licensee shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the Licensee Data; (ii) safeguard any login details provided for accessing the Service and prevent unauthorized access to or use of the 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 the Service.
2.3 Service Use Guidelines. Licensee shall use the Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make the Service available to any third party. Licensee shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Licensed Software 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 the Service; (c) remove any proprietary notices, labels, or marks from the Service or Licensed Software; or (d) access the Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of the Service.
2.4 Sponsors. If Licensee receives its right to access the Licensed Software through a Sponsor, Licensee acknowledges and agrees that Licensee's access to the Licensed Software 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 Licensee Data unless Licensee opts to upgrade Licensee's account and pay the required Fees directly to HOCKEYSTICK. In the event that the Fees for the Service which were paid by a Sponsor end for whatever reason, HOCKEYSTICK will notify Licensee and Licensee will have the option to upgrade to a paid user account with HOCKEYSTICK for continued use of the Licensed Software and Service. If Licensee does not elect to continue under a paid license with HOCKEYSTICK, Licensee's right to access and use the Licensed Software and Service will terminate.
2.5 Support. Any support issues with the Service which Licensee cannot resolve should be notified to HOCKEYSTICK. HOCKEYSTICK will use commercially reasonable efforts to make the 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 Licensee (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 Licensee, regardless of whether included in any invoice sent to Licensee at any time by HOCKEYSTICK.
3.3 Suspension of Service. If Licensee'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 the Service provided to Licensee, until such amounts are paid in full or terminate the Service and this Agreement.
TO THE GREATEST EXTENT PERMITTED BY LAW, THE LICENSED SOFTWARE, 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 LICENSED SOFTWARE OR SERVICE SHALL MEET ANY OR ALL OF LICENSEE'S PARTICULAR REQUIREMENTS, THAT THE LICENSED SOFTWARE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE LICENSED SOFTWARE CAN BE FOUND OR CORRECTED.
UNDER NO CIRCUMSTANCES WILL HOCKEYSTICK BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, 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 LICENSEE 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, Licensee 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 Licensed Software, including any and all modifications, derivatives, improvements and enhancements to the same, and Service and grants Licensee no further licenses of any kind hereunder, whether by implication, estoppel or otherwise.
6.2 License Data. As between HOCKEYSTICK and Licensee, Licensee shall exclusively own all Licensee Data. Licensee hereby grants HOCKEYSTICK a non-exclusive, perpetual, royalty-free, worldwide license to copy, translate, adapt, distribute or otherwise use or exploit the Licensee Data and Usage Data in any medium, mode or format for any lawful purpose, to provide the Service, create aggregate statistics, improve the Service, provide relevant content to End Users, and to publish benchmark statistics and research, provided that such Licensee is aggregated and anonymized and does not publicly identify Licensee or any individual. Any Licensee 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 www.about.hockeystick.co/data-processing-agreement. Without limiting the obligations of Licensee elsewhere in this Agreement or the DPA, unless otherwise expressly agreed in writing between Licensee and HOCKEYSTICK, Licensee 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 Licensee or HOCKEYSTICK operate.
6.3 Feedback. Licensee agrees that HOCKEYSTICK may freely use any suggestions, feedback or ideas Licensee may provide to HOCKEYSTICK (“Feedback”). By providing any feedback to HOCKEYSTICK, Licensee 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 Licensee's Feedback to modify and improve the 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 Licensee uses the 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 Licensee if such breach has not been cured within thirty (30) days of notice to Licensee. No termination of this Agreement will entitle Licensee to a refund of any amounts paid by Licensee to HOCKEYSTICK or affect any obligations Licensee may have to pay any outstanding amounts owing to HOCKEYSTICK. Licensee's rights to use and access the 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 without reference to its conflict of laws principles. Any dispute or action between Licensee and HOCKEYSTICK arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ontario, Canada.
9.2 Entire Agreement; Severability. This Agreement is the entire agreement between Licensee 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 No Assignment. Licensee may not assign this Agreement without the prior written consent of HOCKEYSTICK.
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.