Effective Date: April 28, 2019
WHAT PERSONAL INFORMATION DO WE COLLECT?
This is how we collect Personal Information from our customers, users, and visitors of our Site:
Account Creation or Requesting A Demo. We will collect your full name and email address when you register into the Services by creating an account. If you schedule a demonstration or free trial of the Services (“Demo”), we’ll collect certain Personal Information about you, such as your name, business email, type of business and information about your company, job title, physical address of your company, and phone number.
Communications with Us. We may collect Personal Information from you such as email address, phone number, or other contact information when you request information about our Services, register for our newsletter, request customer or technical support, or otherwise communicate with us.
Security Credentials Data. We collect user IDs, passwords, password hints, and similar security information required for authentication and access to our users’ accounts.
Financial Information. We may collect the financial information and other Personal Information such as your name, business phone number, business email, company address, and other information that you provide via purchase orders or other ordering documents so that we can process your company’s payment for access to the Services.
Surveys. We may contact you to participate in surveys (including via third parties). If you decide to participate, we may ask you for certain information which may include Personal Information.
Information from Other Sources. We may obtain information about you from other sources, including through third party services and organizations to supplement information provided by you. This supplemental information allows us to verify information that you have provided to us and to enhance our ability to provide you with information about our business, products, and Services.
Registration for Sweepstakes or Contests. We may run sweepstakes and contests. Contact information you provide may be used to reach you about the sweepstakes or contest and for other promotional, marketing and business purposes, if permitted by law. In some jurisdictions, we are required to publicly share information of winners.
Automatic Data Collection. We may collect certain information automatically when you use the Services. This information may include your Internet protocol (IP) address, user settings, IMEI, cookie identifiers, Wi-Fi BSSIDs, mobile carrier, mobile advertising and other unique identifiers, details about your browser, operating system or device, location information, Internet service provider, pages that you visit before, during and after using the Services, information about the links you click, and other information about how you use the Services. Information we collect may be associated with accounts and other devices. We also automatically collect some information regarding your use of the Services by placing cookies and other technologies on our Site. For more information on Cookies, please see below.
HOW DO WE USE YOUR INFORMATION?
We Process Personal Information about you for a variety of business purposes, including:
To Provide Services, and Other Information Requested including to:
- provide Services, demonstrations, or free trials, and communicate with you;
- manage your information and accounts;
- respond to certain queries you send to the Services;
- respond to questions, comments, and other requests;
- answer requests for customer or technical support, and troubleshoot problems;
- allow you to register for events.
For Administrative Purposes including to:
- measure interest and engagement in our Site and Services;
- conduct research and development;
- improve our products and Services;
- develop new products and services;
- ensure internal quality control;
- verify individual identity and for fraud prevention;
- communicate with you about your account, our Services, and any policy changes;
- process your financial information and other payment methods for products or Services purchased;
- prevent potentially prohibited or illegal activities;
- enforce our Terms, and send you notices and alerts;
- network and information security;
- comply with the law; and
- any other legitimate purpose.
To Market Our Products and Services. We may use Personal Information to provide you with materials about offers, products, and Services that may be of interest to you, including:
- To tailor content, advertisements, and offers;
- To notify you about offers, products, and services that may be of interest to you;
- For direct marketing and research (including marketing research); and
- Other purposes disclosed to you, or that you consent to, when you provide Personal Information.
You may contact us at any time to opt out of the use of your Personal Information for marketing purposes as described below.
De-identified and Aggregated Information Use. We may use Personal Information and other information about you to create de-identified and aggregated information, such as de-identified demographic information, de-identified location information, information about the computer or device from which you access our Site and Services, or other analyses we create. We may use information in a number of ways, including research, internal analysis, analytics, and any other legally permissible purposes.
Other Uses. We may use Personal Information to pursue legitimate interests, such as direct marketing, research (including marketing research), network and information security, and fraud prevention, or any other purpose disclosed to you at the time you provide Personal Information or with your consent.
WITH WHOM DO WE SHARE YOUR INFORMATION?
We may share your information as follows:
Vendors and Service Providers. We may share your information with our vendors and service providers. The types of service providers (processors) to whom we entrust Personal Information include service providers for: (i) provision of IT and related services; (ii) provision of information and services you have requested; (iii) payment processing; (iv) customer service activities; and (v) the provision of the Site and Services.
Business Partners. We may provide Personal Information to our business partners with whom we jointly offer products or services. In such cases, our business partner’s name will appear along with ours.
Friends or Colleagues. Our referral services may allow you to forward or share certain content with a friend or colleague, such as an email inviting your friend and/or colleague to use our Services. Email addresses that you may provide for a friend or colleague will be used to send your friend or colleague the content or link you request, but will not be collected or otherwise used by Ethica or any other third parties for any other purpose.
Marketing – Interest-Based Advertising and Third Party Marketing. Through our Services, Ethica may allow third party advertising partners to set Technologies (defined below) and other tracking tools to collect information regarding your activities and your device (e.g., your IP address, mobile identifiers, page(s) visited, location, time of day). We may also combine and share such information and other information (such as demographic information and past purchase history) with third party advertising partners for targeted advertising or interest-based advertising. You will be able to opt out of such sharing by following the instructions below.
Disclosures to Protect Us or Others. We may access, preserve, and disclose your Personal Information and other Account information, and content if we believe doing so is required or appropriate to: (i) comply with law enforcement or national security requests and legal process, such as a court order or subpoena; (ii) respond to your requests; (iii) protect your, our or others’ rights, property, or safety; (iv) to enforce our policies or contracts; (v) when we believe disclosure is necessary or appropriate to prevent physical harm or financial loss or in connection with an investigation or prosecution of suspected or actual illegal activity; or (vi) if we, in good faith, believe that disclosure is otherwise necessary or advisable.
Merger, Sale, or Other Asset Transfers. If we are involved in a merger, acquisition, financing due diligence, reorganization, bankruptcy, receivership, purchase or sale of assets, or transition of service to another provider, then your information may be sold or transferred as part of such a transaction as permitted by law and/or contract.
COOKIES, PIXEL TAGS/WEB BEACONS, ANALYTICS INFORMATION, AND INTEREST-BASED ADVERTISING
Cookies. Cookies are small text files placed in visitors’ computer browsers to store their preferences. Most browsers allow you to block and delete cookies. However, if you do that, the Services may not work properly.
Pixel Tags/Web Beacons. A pixel tag (also known as a web beacon) is a piece of code embedded on the Site that collects information about users’ engagement on that web page. The use of a pixel allows us to record, for example, that a user has visited a particular web page or clicked on a particular advertisement.
Analytics. We may also use various analytics service providers such as Google Analytics to collect information regarding visitor behavior and visitor demographics on our Site and Services. For more information about Google Analytics, please visit www.google.com/policies/privacy/partners/. You can opt out of collection and Processing of data by Google Analytics services by using the following link: http://tools.google.com/dlpage/gaoptout. See below for more information under Your Choices: Cookies and Interest-Based Advertising.
We use such Technologies for these purposes:
- Operationally Necessary. This includes Technologies that allow you access to our Site, Services, applications, and tools that are required to identify irregular site behavior, prevent fraudulent activity and improve security or that allow you to make use of our functions such as saved search, or similar functions;
- Performance Related. We may use Technologies to assess the performance of our Services, including as part of our analytic practices to help us understand how our visitors use the Services and so we can improve our Services;
- Functionality Related. We may use Technologies that allow us to offer you enhanced functionality when accessing or using our Site and Services. This may include identifying you when you sign into our Site or Services or keeping track of your specified preferences, interests, or past items viewed;
- Advertising or Targeting Related. We may use first party or third party Technologies to deliver content, including ads relevant to your interests, on our Site and Services or on Third Party sites.
THIRD PARTY WEBSITES, SOCIAL MEDIA PLATFORMS AND SDKs
The Services may contain links to other websites and other websites may reference or link to our Site or other Services. We do not control such third party websites or resources. So please read the privacy policies of each such website before you provide any information on it.
The Services may include publicly accessible blogs, forums, social media pages, and private messaging features. By using such services you assume the risk that the Personal Information provided by you may be viewed and used by Third Parties for any number of purposes.
We may use third party APIs and software development kits (“SDKs”) as part of the functionality of our Services. APIs and SDKs may allow third parties including advertising partners to collect your Personal Information to provide content that is more relevant to you. For more information about our use of APIs and SDKs, please contact us as set forth below.
INTERNATIONAL DATA TRANSFERS
All information Processed by us may be transferred, Processed, and stored anywhere in the world including in the European Union, the United States or other countries. Personal Information may be stored in the cloud, on our servers, on the servers of our affiliates or the servers of our service providers. Accordingly, your Personal Information may be transferred to, and maintained on, computers located outside of your state, province, country or other governmental jurisdiction where the privacy laws may not be as protective as those in your jurisdiction.
General. You may opt out of certain uses of your Personal Information, or even withdraw your previously provided consent at any time and prevent further Processing by contacting us as described below. Please note, however, that the opt out does not apply to, and we may still collect and use, any non-Personal Information regarding your activities on our Site, Services and/or information from the advertisements on third party websites for other legal purposes as described above.
“Do Not Track”. Do Not Track (“DNT”) is a privacy preference that users can set in certain web browsers. Sorry- we do not respond to or honor DNT signals or similar mechanisms transmitted by web browsers.
Cookies and Interest-Based Advertising. You may stop or restrict the placement of Technologies on your device or remove them by adjusting your preferences as your browser or device permits. You may opt out of receiving targeted ads from data partners and other advertising partners that participate in self-regulatory programs via the following links: www.aboutads.info/choices/, www.networkadvertising.org/managing/opt_out.asp, http://www.youronlinechoices.eu/, and https://youradchoices.ca/choices/.
Please note you must separately opt out in each browser and on each device. Advertisements on third party websites that contain the AdChoices link may have been directed to you based on information collected by advertising partners over time and across websites. These advertisements provide a mechanism to opt out of the advertising partners’ use of this information for interest-based advertising purposes.
HUMAN RESOURCES DATA
The following section applies to Ethica’s Processing in the context of human resources, recruitment, and applicant consideration.
Ethica collects Personal Information from current, prospective, and former employees, their contact points in case of a medical emergency, and beneficiaries and dependents under any insurance or benefits policy (“Human Resources Data”). The Human Resources Data we collect may include title, name, address, phone number, email address, date of birth, passport number, driver’s license number, Social Security number or other government-issued identification number, financial information related to credit checks, bank details for payroll, information that may be recorded on a CV or application form, language abilities, contact information of third parties in case of an emergency and beneficiaries under any insurance policy. We may also collect Sensitive Human Resources Data such as details of health and disability, including mental health, medical leave, and maternity leave; information about national origin or immigration status; and optional demographic information such as race, which helps us achieve our diversity goals.
We Process Human Resources Data for a variety of business purposes including:
- Workflow management, including assigning, managing and administering projects;
- Human Resources administration and communication;
- Payroll and the provision of benefits;
- Compensation, including bonuses and long-term incentive administration, stock plan administration, compensation analysis, including monitoring overtime and compliance with labor laws, and company recognition programs;
- Job grading activities;
- Performance and employee development management;
- Organizational development and succession planning;
- Benefits and personnel administration;
- Absence management;
- Helpdesk and IT support services;
- Regulatory compliance;
- Internal and/or external or governmental compliance investigations;
- Internal or external audits;
- Litigation evaluation, prosecution, and defense;
- Diversity and inclusion initiatives;
- Restructuring and relocation;
- Emergency contacts and services;
- Employee safety;
- Compliance with statutory requirements;
- Processing of Employee expenses and travel charges; and
- Acquisitions, divestitures, and integrations.
RIGHTS OF ACCESS, RECTIFICATION, ERASURE, AND RESTRICTION
In accordance with applicable law, you may have the right to: (i) request confirmation of whether we are processing your Personal Information; (ii) obtain access to or a copy of your Personal Information; (iii) receive an electronic copy of Personal Information that you have provided to us, or ask us to send that information to another entity (the “right of data portability”); (iv) restrict our uses of your Personal Information; (v) seek correction or amendment of inaccurate, untrue, incomplete, or improperly Processed Personal Information; and (vi) request erasure of Personal Information held about you by Ethica, subject to certain exceptions prescribed by law. If you would like to exercise any of these rights, please contact us as set forth below.
We will process such requests in accordance with applicable laws. To protect your privacy, Ethica will take steps to verify your identity before fulfilling your request.
SECURITY OF YOUR INFORMATION
We may communicate with you electronically regarding security, privacy, and administrative issues relating to your use of the Services. If we learn of a security system’s breach, we’ll attempt to notify you electronically by posting a notice on the Services, by mail or e-mail.
The Site and Services are not directed to children under 13 (or other age as required by local law), and we do not knowingly collect Personal Information from children. If you learn that your child has provided us with Personal Information without your consent, you may contact us as set forth below, and we’ll promptly take steps to delete such information and terminate the child’s account.
CALIFORNIA PRIVACY RIGHTS
If you are located in the European Economic Area, you have the right to lodge a complaint with a supervisory authority if you believe our Processing of your Personal Information violates applicable law.
“Personal Information” is any information relating to an identified or identifiable natural person.
“Process” or “Processing” means any operation which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure, or destruction.
Ethica Channel Enablement Inc., 80 Mitchell Ave, Suite 200, Toronto, ON M6C 1J1 or firstname.lastname@example.org
Ethica Channel Enablement, Inc.
Last Updated: May 01, 2019
This Reseller Agreement (the “Reseller Agreement“) is between the applicable reseller (“you” or “Reseller“), and Ethica Channel Enablement, Inc.. If you are agreeing to this Reseller Agreement not as an individual but on behalf of your company, then “Reseller” or “you” means your company, and you are binding your company to this Reseller Agreement.
This Reseller Agreement is a separate agreement from the agreement that Ethica has with its end users at www.ethica.partners/terms (as may be modified by Ethica from time to time, “End User Agreement“). For convenience and consistency, however, the definitions of certain terms related to our products and services (namely Software and Users) will be the same as those in the End User Agreement.
This Reseller Agreement does not have to be signed in order to be binding. You indicate your assent to the terms by clicking on the “I agree” (or similar button) that is presented to you at the time of your registration at https://CloudAccess.Ethica.Partners
- Order Requirements.
To the extent that we make Software available for resale, You may order such Software for resale to end users by following the directions set forth on our website (currently at www.ethica.partners). You must provide all of the requested information including, without limitation, the identity of the end user, the end user’s business and email addresses, and the specific Software to be resold in the order (“Order“). All such information must be accurate and complete and must reflect bona fide orders you have received from end users.
- Limited Right to Resell.
Subject to this Reseller Agreement, we grant you a one-time, non-exclusive, non-transferable right to resell the CloudAccess Software specified in the Order to the end user specified in the Order, solely for use by such end user in accordance with the End User Agreement. This right to resell does not apply to any other end user or Software (including without limitation any sale to any related party, organization or affiliate, or to any subsequent, additional or renewal sale to the same party).
- Enforcement of End User Agreement.
3.1. End User Terms. All use of the Software by end users is subject to the End User Agreement, and you may not purport to impose any other terms pertaining to their use of the Software. You are responsible for ensuring that each end user enters into the End User Agreement, and an order for the Software which includes all limitations on Users and other quantity restrictions applicable to the end user’s order set forth in the Order (the “Restrictions”), in a manner that is legally binding upon the end user. This may require you to (a) notify each end user that the Software is subject to the End User Agreement and the Restrictions and that by placing an order with Reseller the end user agrees to the End User Agreement and the Restrictions, (b) include either a copy of or link to the End User Agreement and Restrictions in each quotation and order form you issue to the end user, and (c) obtain from each end user written confirmation of acceptance of the End User Agreement and the Restrictions prior to the earlier to occur of acceptance of the order by Reseller or delivery of the Product. You must provide evidence of such acceptance by the end user to Ethica upon request.
3.2. Enforcement Cooperation. You agree to immediately notify us of any known or suspected breach of the End User Agreement or the Restrictions, or other unauthorized use of the Software, and to assist us in the enforcement of the terms of the End User Agreement.
- Identification as Reseller.
Subject to this Reseller Agreement, you are permitted to identify yourself as an Ethica “Reseller” solely in connection with your resale of CloudAccess Software. You may not use any Ethica trademark, logo or service mark (“Marks“) except as permitted by Ethica’s Trademark Guidelines at http://www.ethica.partners/terms
All goodwill arising from your use of Marks inures to the benefit of Ethica.
- Payment and Delivery.
5.1. Fees. Your non-refundable, non-cancelable payment to Ethica is due when you submit your Order unless otherwise set forth in the Order and in any event no later than forty-five (45) days from your receipt of an Ethica invoice. In the event that you have not made payments satisfactory to Ethica for previous transactions, Ethica reserves the right to require prepayment or other payment arrangements satisfactory to Ethica going forward. All amounts payable by you shall be paid in full without set-off, deduction or other withholding of any amount. You are solely responsible for collecting payment from your end user customers. Late payment or nonpayment by any end user to you shall not delay or excuse payment by you to Ethica hereunder.
5.2. Delivery. Upon receipt of payment, we will deliver the applicable CloudAccess Software license key and other information necessary for end users to download and use the Software directly to the delivery contact specified in the Order in accordance with our standard delivery procedures. If we deliver the license keys or logins to you, you agree that you will, in turn, deliver them directly to the end user specified in the Order, and not to use or access the Software in any way. You must either delete all license keys promptly thereafter or maintain them in confidence. You agree not to (and will not allow any third party to) take any steps to interfere with or defeat any license keys.
5.3. Taxes. Payments made by you under this Reseller Agreement exclude any taxes or duties payable in respect of the Software in the jurisdiction where the payment is either made or received. To the extent that any such taxes or duties are payable by Ethica, you must pay to Ethica the amount of such taxes or duties in addition to any fees owed under this Reseller Agreement. Notwithstanding the foregoing, you may have obtained an exemption from relevant taxes or duties as of the time such taxes or duties are levied or assessed. In that case, you will have the right to provide to Ethica any such exemption information, and Ethica will use reasonable efforts to provide such invoicing documents as may enable you to obtain a refund or credit for the amount so paid from any relevant revenue authority if such a refund or credit is available.
5.4. End User Pricing and Payment; Refunds. You will independently set your own pricing to each end user. You bear all risk of non-payment by end users, and you are solely responsible for all of your costs and expenses. You may not terminate an Order or receive any refunds due to non-payment by an end user. If Ethica provides any refund to an end user under our standard return policy, Ethica, at its option, will refund the applicable amounts either directly to the end user or to you for distribution to the end user. You agree to cooperate with Ethica in connection with any such refund.
If you provide any feedback, comments, suggestions, ideas, description of processes, or other information to us about or in connection with the Software, our other products, solutions, or services, or our Reseller program, including without limitation any ideas, concepts, know-how or techniques contained therein (“Feedback“), then you grant us a worldwide, royalty-free, fully-paid up, non-exclusive, perpetual, transferable and irrevocable (with right of sublicense) license to use, copy, modify, create derivative works of, and otherwise exploit the Feedback for any purpose, without any compensation to you or any restriction or obligation on account of intellectual property rights or otherwise. For clarity, no Feedback will be deemed your Confidential Information, and nothing in this Reseller Agreement (including without limitation Section 12 (Confidentiality)) limits Ethica’s right to independently use, develop, evaluate, or market products, whether incorporating Feedback or otherwise.
- No Use Rights; Reserved Rights.
Only the end user customer of the Software (and its Users) may use the Software. You are not permitted to use any Software resold under this Reseller Agreement for your own benefit. To the extent that you nevertheless gain any access to the Software, all license restrictions in the End User Agreement apply to you. Notwithstanding anything to the contrary contained in this Reseller Agreement, except for the limited resale right in Section 2 above, Ethica and its suppliers have and will retain all rights, title and interest (including without limitation all patent, copyright, trademark, trade secret and other intellectual property rights) in and to all Software, service descriptions, documentation, user manuals, and underlying technology (“Ethica Technology“), and all copies, modifications and derivative works thereof, including without limitation as may incorporate Feedback. You acknowledge that you are obtaining only a limited right to resell the Software and that irrespective of any use of the words “purchase”, “sale” or like terms hereunder no ownership rights are being conveyed to you under this Reseller Agreement or otherwise.
- Reseller Obligations and Liability.
8.1. End User Relationships; Business Practices. You agree not to represent yourself as an agent or employee of Ethica and agree that you will have primary control over any end user communication regarding the Software once you submit an Order. You will not make any representations regarding Ethica, on Ethica’s behalf, or about any Software. You agree not to engage in any deceptive, misleading, illegal, or unethical practices that may be detrimental to Ethica or its products and agree to comply with all applicable federal, state and local laws and regulations while operating under this Reseller Agreement, including without limitation the U.S. Foreign Corrupt Practices Act and any similar laws or regulations in any applicable jurisdiction. You further agree to comply with all applicable export and import laws and regulations, including U.S. embargo and sanctions regulations and prohibitions on export for certain end uses or to certain end users. Without limiting the generality of the foregoing, you acknowledge and agree that the Software is prohibited for export or re-export to Cuba, North Korea, Iran, Libya, Syria and Sudan or to any person or entity on the U.S. Department of Commerce Denied Persons List or on the U.S. Department of Treasury’s lists of Specially Designated Nationals, Specially Designated Narcotics Traffickers or Specially Designated Terrorists, as such is changed from time to time
8.2. Indemnity. You are fully responsible for all liabilities and expenses of any type whatsoever that may arise on account of your resale of Software. You will indemnify, hold harmless and (at Ethica’s option) defend Ethica from and against any claims, demands, suits, proceedings, investigations, actions, losses, costs, expenses, settlement amounts, fines, penalties, damages and any and all other liabilities, including without limitation reasonable attorneys’ fees, arising from or relating to: (a) any breach or alleged by you of any term of this Reseller Agreement, (b) the issuance by you of any warranty or representation regarding Ethica or its products or services not specified in the End User Agreement, or (c) any of your other acts or omissions in connection with the marketing or resale of the Software under this Reseller Agreement.
9.1. Termination. We may terminate this Reseller Agreement if you materially breach any provision in this Reseller Agreement and fail to cure such breach within five (5) days of written notice of such breach. In addition, either party may terminate this Reseller Agreement for any reason or no reason upon thirty (30) days’ written notice to the other party. Ethica may also terminate this Reseller Agreement immediately upon notice to you if (a) it ceases to offer the current reseller program or (b) it reasonably believes that continuing hereunder could result in business or legal liability for Ethica or otherwise harm Ethica or its end users.
9.2. Effect of Termination. You expressly agree that Ethica will have no obligation or liability to you resulting from termination or expiration of this Reseller Agreement in accordance with its terms. Upon termination or expiration of this Reseller Agreement: (a) you must immediately cease identifying yourself as an Ethica Reseller and using Ethica Marks in connection with your resale activities hereunder, (b) you must destroy all Confidential Information in your possession and certify destruction (unless we request that you return such materials to us) and (c) Sections 5 (Payment and Delivery) (but only with respect to Orders completed during the Term), 6 (Feedback) and 7 (No Use Rights; Reserved Rights) through 14 (General) will survive. Notwithstanding any termination or expiration of this Reseller Agreement all End User Agreements with end users for the license of the Software which are in compliance with this Agreement shall survive for the subscription term set forth in the applicable Order. Ethica shall have no liability to you and you expressly waive any liability of Ethica, as a result of termination or expiration of this Reseller Agreement in accordance with its terms, including without limitation claims relating to loss of profit, goodwill, advertising costs, termination of employees, employees’ salaries, unrecovered expenditures, investments, inventory purchases, leases, property improvements, or any other items.
- Changes to Agreement.
From time to time, we may modify this Reseller Agreement and/or our End User Agreement. The version of this Reseller Agreement and End User Agreement in place at the time you submit an order is the version that will govern such order. We will use reasonable efforts to notify you of these changes through communications through our website or other forms of communication, but we also suggest that you bookmark this Reseller Agreement and the End User Agreement and read them periodically.
Except as otherwise set forth in this Reseller Agreement, each party agrees that all code, software inventions, know-how, methodologies, business, technical and financial information it obtains (as “Receiving Party“) from the disclosing party (“Disclosing Party“) constitute the confidential property of the Disclosing Party (“Confidential Information“), provided that it is identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be Confidential Information due to the nature of the information disclosed and the circumstances surrounding the disclosure. Any Ethica Technology and any performance information relating to the Products shall be deemed Confidential Information without any marking or further designation. Except as expressly authorized herein, the Receiving Party will hold in confidence and not use or disclose any Confidential Information. The Receiving Party’s nondisclosure obligation shall not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt of the Confidential Information; (ii) is or has become public knowledge through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; (iv) is independently developed by employees of the Receiving Party who had no access to such information; or (v) is required to be disclosed pursuant to a regulation, law or court order (but only to the minimum extent required to comply with such regulation or order and with advance notice to the Disclosing Party). The Receiving Party acknowledges that disclosure of Confidential Information would cause substantial harm for which damages alone would not be a sufficient remedy, and therefore that upon any such disclosure by the Receiving Party the Disclosing Party shall be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law.
- DISCLAIMER OF WARRANTIES.
For the avoidance of doubt, any and all commitments, indemnities and other terms and conditions offered by Ethica with respect to use of the Software are made directly by Ethica to the end user in accordance with the End User Agreement and do not extend to you as a Reseller. Ethica and its licensors make NO WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, TO YOU THE RESELLER, AND EXPRESSLY DISCLAIMS THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NONINFRINGEMENT.
- LIMITATION OF LIABILITY.
13.1. Waiver of Consequential Damages. TO THE FULLEST EXTENT ALLOWED BY LAW, NEITHER ETHICA NOR ITS SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST PROFITS, LOSS OF GOODWILL, LOSS OF BUSINESS, LOSS OF USE, LOST DATA, FAILURE OF SECURITY MECHANISMS, INTERRUPTION OF BUSINESS, OR THE COSTS TO COVER), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF INFORMED OF THE POSSIBILITY OF SUCH DAMAGES IN ADVANCE AND EVEN IF SUCH DAMAGES WERE REASONABLY FORSEEABLE. 13.2. Liability Cap. TO THE FULLEST EXTENT ALLOWED BY LAW, ETHICA’S AND ITS THIRD-PARTY SUPPLIERS’ ENTIRE LIABILITY UNDER THIS RESELLER AGREEMENT SHALL NOT EXCEED THE AMOUNTS ACTUALLY PAID BY RESELLER TO ETHICA IN RESPECT OF THE ORDER THAT IS THE SUBJECT OF THE CAUSE OF ACTION IN THE TWELVE MONTHS IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION AROSE.
- Dispute Resolution; Governing Law; Anti-Bribery
14.1. Dispute Resolution; Arbitration. In the event of any controversy or claim arising out of or relating to this Reseller Agreement, the parties hereto shall consult and negotiate with each other and, recognizing their mutual interests, attempt to reach a solution satisfactory to both parties. If the parties do not reach a settlement within a period of 60 days, any unresolved controversy or claim arising out of or relating to this Reseller Agreement shall proceed to binding arbitration under the Canadian Arbitration Association (CAA) Rules. The parties shall seek to mutually appoint an arbitrator. If the parties cannot agree on a single arbitrator, then there shall be three (3) arbitrators: one selected by each party, and a third selected by the first two. Arbitration will take place in Toronto, Ontario, Canada. All negotiations and arbitration proceedings pursuant to this Section 14.1 will be confidential and treated as compromise and settlement negotiations for purposes of all similar rules and codes of evidence of applicable legislation and jurisdictions. The language of the arbitration shall be English.
14.2. Governing Law; Jurisdiction. This Reseller Agreement will be governed by and construed in accordance with the applicable laws of the Province of Ontario, Canada, without giving effect to the principles of that State relating to conflicts of laws. Each party irrevocably agrees that any legal action, suit or proceeding that is not otherwise subject to the arbitration provisions of Section 14.1 (Dispute Resolution; Arbitration) must be brought solely and exclusively in, and will be subject to the service of process and other applicable procedural rules of, the Provincial or Federal court in Toronto, Ontario, Canada, and each party irrevocably submits to the sole and exclusive personal jurisdiction of the courts in Toronto, Ontario, Canada, generally and unconditionally, with respect to any action, suit or proceeding brought by it or against it by the other party.
14.3. Injunctive Relief; Enforcement. Notwithstanding the provisions of this Section 14, nothing in this Reseller Agreement shall prevent either party from seeking equitable or injunctive relief with respect to a violation of intellectual property rights, confidentiality obligations or enforcement or recognition of any award or order in any appropriate jurisdiction.
14.4. Exclusion of UN Convention and UCITA. The terms of the United Nations Convention on Contracts for the Sale of Goods do not apply to this Reseller Agreement. The Uniform Computer Information Transactions Act (UCITA) shall not apply to this Reseller Agreement regardless of when or where adopted.
14.5. Anti-Bribery. In conformity with the United States Foreign Corrupt Practices Act and the UK Bribery Act and with Ethica’s corporate policies regarding foreign business practices, you and your employees and agents will not directly or indirectly make and offer payment, promise to pay, or authorize payment, or offer a gift, promise to give, or authorize the giving of anything of value for the purpose of influencing an act or decision of an official of any government (including a decision not to act) or inducing such a person to use his influence to affect any such governmental act or decision in order to assist Ethica in obtaining, retaining, or directing any such business.
- Government End Users.
The Software is commercial computer software. If the user or licensee of the Software is an agency, department, or other entity of the Canadian Government, or Any Other Government the use, duplication, reproduction, release, modification, disclosure, or transfer of the Software, or any related documentation of any kind, including technical data and manuals, is restricted by a license agreement or by the terms of this Reseller Agreement in accordance with Federal Acquisition Regulation 12.212 for civilian purposes and Defense Federal Acquisition Regulation Supplement 227.7202 for military purposes. The Software was developed fully at private expense. All other use is prohibited.
This Reseller Agreement is the entire agreement between you and Ethica relating to the resale of Software as described in this Reseller Agreement and supersedes all prior and contemporaneous oral or written communications, proposals and representations with respect to the Software or any other subject matter covered by this Reseller Agreement. You agree that any varying or additional terms contained in any purchase order or other written notification or document issued by you in relation to the Software resold by you to your end users hereunder shall be of no effect and all such terms or conditions shall be null and void. If any provision of this Reseller Agreement is held to be void, invalid, unenforceable or illegal, the other provisions shall continue in full force and effect. This Reseller Agreement may not be modified or amended except as described in Section 10 (Changes to Agreement) or otherwise with the written agreement of Ethica (which may be withheld in its complete discretion without any requirement to provide reasons). As used herein, “including” (and its variants) means “including without limitation” (and its variants). If either party to this Reseller Agreement breaches any provision of this Reseller Agreement relating to Confidential Information or intellectual property rights, there may not be an adequate remedy available solely at law; therefore, an injunction, specific performance or other form of equitable relief or monetary damages or any combination thereof may be sought by the injured party to this Reseller Agreement. No failure or delay by the injured party to this Reseller Agreement in exercising any right, power or privilege hereunder shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege hereunder at law or equity. The parties are independent contractors.
This Reseller Agreement shall not be construed as constituting either party as a partner of the other or to create any other form of legal association that would give on party the express or implied right, power or authority to create any duty or obligation of the other party. This Agreement shall not be assigned by either party without the advance written consent of the other party; provided, however that either party may assign this Agreement without consent to its successor in a merger, acquisition or other change of control, including without limitation any sale of all or substantially all of a party’s assets or stock or business to which this Agreement relates. This Agreement shall be binding upon and inure to the benefit of the parties, their successors and permitted assigns. Any assignment in contravention of this section shall be void and of no effect. You agree that Ethica may use your name and may disclose that you are a reseller of Ethica in Ethica advertising, press, promotion and similar public disclosures. You also hereby grant Ethica a non-exclusive, revocable license during the term of this Agreement to list your name and display your logo in the “reseller” or similar section of Ethica’s website.
This End User Subscription Agreement (“Agreement”) is made by and between Ethica Channel Enablement, Inc. (“Ethica”) or its authorized reseller (collectively referred to as “we,” “us,” or “our”) and you, as an end user (“End User,” “you,” or “your”) of the Ethica network service (“CloudAccess”), and sets forth the terms and conditions under which CloudAccess will be provided to you. You will have accepted this Agreement and shall be bound by its terms if you indicate your affirmative acceptance of such terms, either by acknowledgement in a writing (including by incorporation by reference) or by electronic “click through” as may be required for use of CloudAccess.
- Entire Agreement.
This Agreement, together with all ordering documents referencing this Agreement and entered into and validly executed between us and you (each, a “Purchase Order”), and any other documents incorporated herein, constitute the entire agreement between us and you relating to your purchase of subscription(s) to use CloudAccess and to use Ethica’s hardware products (“Equipment”) provided to you for use in connection with CloudAccess (together, the “Service”); provided that no conflicting terms or conditions set forth on any Purchase Order or other ordering document (to which notice of objection is hereby given), or in any future correspondence between us and you, shall alter or supplement this Agreement unless Ethica agrees in writing to such terms. You may not modify this Agreement by making any typed, handwritten, or any other changes to it for any purpose. This Agreement may only be amended or modified by a writing signed by both parties.
- Delivery; Subscription Start Date.
All deliveries of Equipment are FCA our facility. Delivery dates are estimates only and are not of the essence. The start date of your subscription to CloudAccess shall be the earlier of (i) the date of your activation of CloudAccess, and (ii) the date that is 30 days after the date of shipment by Ethica of the Equipment associated with the subscription.
- Invoicing, Payments and Taxes.
You agree to pay the prices for the Service as set forth in the Purchase Order, together with shipping charges (if applicable) and any taxes, duties, excises and other charges, including VAT, due in connection with the sale, installation, provisioning or use of the Service. Payment is due thirty (30) days from the date of the invoice. All payments are to be made in U.S. dollars. In the event of late payment, we may charge you interest on the unpaid amount at the rate of 1.5% per month or the maximum amount permitted under applicable law, whichever is less; and you agree to pay our collection costs and expenses, including reasonable attorney fees.
- Cancellation Policy.
ALL EXECUTED PURCHASE ORDERS ARE NON-CANCELLABLE AND ALL AMOUNTS PAID ARE NONREFUNDABLE.
- Use of Service and Equipment.
- No Life Support.
The Service is not designed, intended, authorized, or warranted for use or inclusion in life support, nor in life endangering applications where failure or inaccuracy might cause death or personal injury; any such use or inclusion by you is fully at your own risk, and you shall indemnify and hold us and our suppliers harmless from all resulting or related costs, loss, liability, and expense (including without limitation court and reasonable attorneys fees).
- Protection of Equipment; Return Upon Expiration.
The Equipment belongs to us. You may not sell, lease, abandon, or give away the Equipment; allow anyone other than Ethica or its agents to service the Equipment; or permit any other person to use the Equipment, other than on your behalf in connection with your use of CloudAccess. You will be directly responsible for loss of the Equipment. Upon expiration or termination of this Agreement, you must return the Equipment to us in the same condition as when delivered to you, reasonable wear and tear excepted; and if we have not received the Equipment in such condition within 10 days thereafter, you will be deemed to have purchased the Equipment at Ethica’s list price, and will pay us upon invoice as provided in Section 3 above.
- Our Right to Audit; Use of Data.
You grant us the right to audit your use of CloudAccess, in order to confirm compliance with this Agreement and other agreements you have with us. You acknowledge and agree that Ethica may use, on an aggregated, non-individually-identifiable basis, all information regarding networking characteristics, usage, performance and related data involved in the use of CloudAccess.
You acknowledge that Ethica may change CloudAccess, and may change the Equipment, either by physical replacement or by remote changes to its software or firmware, at its discretion at any time. Such change may interrupt your CloudAccess.
- Proprietary Rights.
Except as explicitly set forth in this Agreement, you do not acquire any rights in or license to any component of the Service or any Ethica intellectual property rights. You shall not, and shall not encourage any third party to: (a) modify, adapt, alter, disassemble, reverse-engineer, decompile, disassemble, or attempt to derive the source code for the Service (including the Equipment), except to the extent that such activities are required to be permitted under applicable law; or (b) remove, alter, or obscure in any way the proprietary rights notices (including copyright, patent, and trademark notices and symbols) of Ethica or its suppliers affixed or contained on or within any Equipment. Without limiting the foregoing, any software provided to you or made available for your use (“Software”) is licensed only, is subject to any license agreement provided therewith, and Ethica retains title in all copies of the Software, and you do not obtain title to, or ownership of, any intellectual property rights in the Software or any copies thereof. Ethica reserves all rights not expressly granted by this Agreement.
- Confidential Information.
You agree to treat any confidential information regarding the Service and any other information provided to you by us that would reasonably be understood to be confidential (“Confidential Information”) as strictly confidential, and use such Confidential Information only for the purposes of using the Service as permitted hereunder.
- Limited Warranty.
Ethica warrants to you that the Equipment shall be free from defects in material and workmanship (the “Exclusive Warranty”) during your subscription of CloudAccess. With respect to the Equipment, the Exclusive Warranty shall apply only to the extent it has been installed, used and maintained in the conditions specified by Ethica or, in absence thereof, at least in conditions consistent with generally accepted practices for this type of product; and not been subject to any unauthorized modification or repair or attempts thereto; and not been connected to or used in combination with other incompatible equipment or systems.
If any Equipment fails to meet the Exclusive Warranty, then upon your written request and pursuant to any warranty procedure published by Ethica, Ethica shall, at Ethica’s sole option and expense, promptly either repair or replace the Equipment in question. The remedies specified in this Section shall constitute YOUR sole and exclusive remedy and Ethica’s sole and exclusive liability for EQUIPMENT and Ethica’s breach of the Exclusive Warranty hereunder.
WE make NO other warranties or representations, express or implied, and WE expressly exclude and disclaim any and all warranties which may be implied or otherwise created by operation of law including without limitation all implied warranties of uninterrupted or error-free use or operation, AND merchantability, NON-INFRINGEMENT AND fitness for a particular purpose.
Ethica will defend or at its option settle, any claim, suit or proceeding brought against you by any third party for infringement or misappropriation of a valid U.S. or Canadian patent, copyright or trade secret by the Equipment (“Claim”), subject to the provisions herein. Ethica shall have sole control of any such action or settlement negotiations, and Ethica agrees to pay, subject to the limitations herein, any final judgment entered against you or settlement entered into in any such Claim. Further, should such final judgment or settlement require that Equipment be returned and/or the purchase price refunded to End Users, Ethica will pay such related costs. You agree that Ethica, at its sole option, shall be relieved of the foregoing obligations unless you (a) give prompt, written notice to Ethica of all Claims, (b) cooperate reasonably with Ethica (at Ethica’s reasonable expense), and (c) allow Ethica the sole right to defend, or at Ethica’s option settle, all such Claims. If Ethica becomes aware of a Claim, Ethica may, in its sole discretion, obtain the right for you to continue to use the Equipment, modify the Equipment so that it is no longer infringing or misappropriating, or accept return of Equipment from you and refund to you a pro rata amount paid for the Service. Ethica shall have no liability for any Claim resulting from: (i) use or combination of the Equipment with any other incompatible goods or services; or (ii) any modification or alteration of Equipment, where such Claim would not have arisen except for such use, combination, modification or alteration. The foregoing expresses your sole remedy, and Ethica’s sole liability, for any claim of infringement or misappropriation.
- LIMITATION OF LIABILITY.
(A) IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, OR ANY LOST PROFITS, LOSS OF DATA, LOSS OF USE, COSTS OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, HOWEVER CAUSED, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY AND WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
(B) IN NO EVENT SHALL OUR AGGREGATE LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH ANY PURCHASE ORDER OR PRODUCT OR THIS AGREEMENT EXCEED, AND YOU RELEASE ALL CLAIMS AGAINST US (AND ANY OF OUR LIABILITY) IN EXCESS OF, THE AMOUNTS PAID BY YOU TO US IN RELATION TO THE PRODUCT IN CONNECTION WITH WHICH THE LIABILITY ARISES. THE EXISTENCE OF ONE OR MORE SUCH CLAIMS SHALL NOT RAISE OR EXTEND THIS LIMIT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED OR EXCLUSIVE REMEDY.
- Ethica as Beneficiary.
If this Agreement is entered into between you and Ethica’s authorized reseller, THE TERMS OF THIS AGREEMENT, INCLUDING BUT NOT LIMITED TO THE LIMITED WARRANTY AND LIMITATIONS OF LIABILITY SET FORTH HEREIN, ARE EXPRESSLY INTENDED TO INNURE TO THE BENEFIT OF ETHICA, AND ETHICA SHALL BE A THIRD PARTY BENEFICIARY TO SUCH TERMS.
You shall comply with all applicable export laws and all applicable restrictions and regulations of any agency or authority, and shall not export, nor permit the export or re-export of any confidential or proprietary information or the Equipment in violation of any such laws, restrictions and regulations, or without all required licenses and authorizations, to any country to which such export laws, restrictions and regulations prohibit exportation.
- Governing Law; Forum.
The parties agree that this Agreement shall be construed and regulated under and by the laws of the Province of Ontario, without giving effect to provisions related to choice of laws or conflict of laws, and with venue proper in the provincial and federal courts located in Toronto, Province of Ontario regardless of the place this Agreement may have been executed or where performance hereunder takes place and the parties submit to the personal jurisdiction of such courts. All disputes between the parties arising out of or related to this Agreement, other than claims arising out of non-payment by you, shall be brought within one (1) year after the accrual of the dispute.
- Term and Termination.
The term of this Agreement shall be the period for which you have purchased a subscription to CloudAccess, beginning on the subscription start date determined as set forth above. We may terminate this Agreement with immediate effect upon notice to you if any of the following occurs: (i) a petition in bankruptcy is filed by or against you, you are declared bankrupt, or proceedings are initiated by or against you seeking appointment of a receiver, reorganization, liquidation, dissolution, or other similar relief, or (ii) you materially breach this Agreement and fail to cure such breach within thirty (30) days after written notice thereof, provided, however, that no cure period shall apply to your failure to make timely payments hereunder. In the event of any of the foregoing, we shall be entitled, without prejudice to any other remedies, to terminate your use of CloudAccess without being in breach of this Agreement. Upon expiration or termination, all terms and provisions herein which by their nature should survive expiration or termination of this Agreement shall so survive. Without limiting the foregoing, Sections 8 (Our Right to Audit; Use of Data), 10 (Proprietary Rights), 11 (Confidential Information), 12 (Limited Warranty), 13 (Indemnification), 14 (Limitation of Liability), 15 (Ethica as Beneficiary), 16 (Export) and 17 (Governing Law; Forum) shall survive any expiration or termination of this Agreement.
- Force Majeure.
Other than for any payment obligations hereunder, neither party shall be liable to the other for default or delay in the performance of any of its obligations hereunder due to events beyond the reasonable control of such party, including without limitation acts of God or of public enemy (collectively, “Force Majeure”). In the case of a Force Majeure event, the affected party’s performance is excused for a period equal to the time lost by reason of Force Majeure.
You may not, without prior written consent of Ethica, assign or otherwise transfer to a third party this Agreement, except to an entity that acquires all or substantially all of your business or assets. The contract shall be binding and shall inure to the benefit of the permitted legal successors of either party hereto.
Failure by either party to enforce any provisions of this Agreement shall not be deemed a waiver of future enforcement of that or any other provision. If any part of this Agreement is found to be unenforceable, the remaining portions of this Agreement will remain in full force and effect.
Coming. Be Patient.