These Customer Terms and Conditions govern Customer use of Software Services and Professional Services described in an Order Form executed between the Customer and Ulula Canada Inc. (“Ulula”). Terms defined in the Order From apply throughout. Any changes or amendments to the Customer Terms and Conditions are to be defined on the Order Form under Special Terms.

1. SOFTWARE SERVICES 

1.1 Software Services. The Software Services shall be available for use effective on the later of (i) completion of the Implementation Work or (ii) the Effective Date of the Order Form. Ulula will, in consideration of payment of the Fees, during the Term, make the Software Services available to the Customer in accordance with this Agreement and subject to the restrictions and limitations and conditions specified herein. The Fees shall be paid in accordance with the Payment Schedule. Access to and use of the Software Services is limited to the Authorized Number of Sites and Number of User Accounts and other limitations specified on the Order Form. Usage beyond any specified limitations is subject to extra charges and the Customer agrees to pay Ulula for any additional charges for usage in excess of such limitations.  No other rights or licenses are granted by Ulula except as expressly set forth herein.

1.2 Documentation. “Software Documentation” means any available user guide documentation (whether in material or electronic form or other form) concerning the use of the Software and Software Services. The Customer shall be entitled to access, download and print Software Documentation solely for its internal use during the Term in connection with and for the purpose of its use of the Software Services.

1.3 Implementation Work. To the extent described in the Order Form, Ulula will deliver the Implementation Work; the Implementation Work (if any) must be completed before Customer’s use of the Software Services may commence. Customer and Ulula will cooperate to complete the Implementation Work. Ulula agrees to use commercially reasonable efforts to complete the Implementation Work in accordance with any target delivery schedule specified; any Customer-caused delays with respect to this completion (e.g. non-responsiveness, delay in providing necessary documentation or information, delay in providing feedback if so requested by Ulula) will cause any completion deadlines agreed to by Ulula to extend for the same duration as the Customer’s delay. Implementation Work is deemed completed once it is provided to Customer provided that it materially complies with the details described in the Order Form. All delivery and completion dates are targets and Ulula shall not be liable for any failure to meet any such dates for any reason.

1.4 Registration. Following the execution of this Agreement, the Customer may authorize the Number of User Accounts to register a Software Service account (“User Account”). Only individuals registered to a User Account may access and use the Software. Registered User Account holders may not share access to the Software or User Account login information (e.g. user name, password) with other persons. The Customer is responsible for ensuring the security of all User Account passwords and for all activity and use of the Software (including without limitation compliance with the terms hereof) by User Account holders or other persons having access to the Software.

1.5 Service Level. (a) Service Level. Ulula will use commercially reasonable efforts to make the Software Services Available (as described below) to the Customer 99% of the time during Service Hours. “Service Hours” means 24 hours per day, seven days per week, 365 days per year during the Term other than during any Maintenance Period or as otherwise provided for herein. “Maintenance Period” means: (i) such regular maintenance period as Ulula or the Hosting Provider may determine and communicate to the Customer from time to time; and (ii) when access to the servers on which the Software and/or data is hosted is suspended by the Hosting Provider for technical or emergency reasons or to maintain the network, the hardware or any other facilities, or when access to the servers on which the Software is hosted is suspended by the Hosting Provider. Ulula shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. (b) Exceptions. Ulula shall not be responsible for a failure to meet the Availability target set forth in Subsection (a) to the extent that such failure is attributable to: any circumstance or events beyond the reasonable control of Ulula, including due to a Force Majeure Event; Customer’s acts, errors, omissions, or breaches of the terms of this Agreement, including due to any problems or errors with any computer equipment or network that is the responsibility of the Customer; and any issues originating with, or failures of, computer equipment or networks that are not the responsibility of Ulula or within its direct control, including public telecommunications services and services provided by the Hosting Provider. Ulula does not guarantee or warrant continuous or uninterrupted availability of the Software Services. The Hosting Provider reserves the right to suspend its services, which may impact the access to the Software Services. Customer’s sole and exclusive remedy for any failure to meet the Availability target set forth in Subsection (a) shall be the provision of Service Credits and any such failure shall not be a breach of the terms of this Agreement. “Available” means that the Customer is able to access and use the Software Services uninterrupted, and availability is measured as follows: Service Hours (in minutes) during a calendar month during the Term, minus time (in minutes) during such month when the Software Services are not available to the Customer, divided by Service Hours (in minutes) during a calendar month during the Term, with the result expressed as a percentage. The measurement for availability described above excludes all Maintenance Periods.  “Hosting Provider” means the third party hosting provider which makes available to Ulula servers and other technology on which to host the Software and Customer Data, Site Data, Services Data and Stakeholder Data and provide the Software Services and certain other hosting related services, which is currently AWS Services  (“AWS”), and which may be changed by Ulula in its discretion at any time. The term Hosting Provider includes AWS and its contractors and subprocessors wherever they do business worldwide.

1.6 Software Service Support. 

(a) Support Procedure.  The reporting and resolution of all Problems by the Customer shall be subject to the following terms and procedures: 

(i) Ulula shall maintain a help desk (“Help Desk”). The Help Desk shall be accessible by the Customer authorized User Account holders via Ulula’s designated support telephone number or email at [email protected]; 

(ii) Support shall be available during Ulula business hours (Eastern Time), Monday to Friday, with the exclusion of Canadian holidays observed by Ulula (“Support Hours”). 

(iii) Customer shall report all problems (meaning any program error, bug or other failure of all or part of the Software Service that results in the Software Service not performing in accordance with its standard parameters) (“Problems”) that are not resolved by Customer to the Help Desk and shall advise whether the Problem is a Level 1, Level 2 or Level 3 Severity Problem (in accordance with the below definitions). 

(iv) Ulula will use commercially reasonable efforts to respond to or resolve, as applicable, all reported Problems, within the following periods of time: 

In the event that the Software Service does not operate in accordance with this Agreement (including without limitation any Order From), or has any other operational defect, limitation, failure or deficiency, notwithstanding any other term of this Agreement, Customer’s sole and exclusive rights and remedies in respect of such shall be Ulula’s obligation to use commercially reasonable efforts to remedy the defect, limitation, failure or deficiency and Ulula shall not be liable to the Customer for damages of any kind or nature. Ulula does not guarantee that all Problems are or will be resolved or correctable (in each case whether within the targeted resolution time, or otherwise).  A Problem shall be deemed reported at such time as the Problem is first received by the Help Desk. Response times and targeted times to resolve apply to notices of Problems received during Support Hours. Notices of Problems received outside of Support Hours shall be deemed to be received at the beginning of the next Support Hour day.  Calculation of response times and targeted times to resolve Problems shall be made on a Support Hours basis and Problems not resolved during Support Hours will continue to be worked on at the commencement of the next Support Hours period.  If Ulula is unable to resolve a reported Problem, the parties acting reasonably shall co-operate and work together to implement a plan for addressing any recurrence of the reported Problem. 

1.7 Restrictions. Customer’s use of the Software Services is subject to the following restrictions and limitations. The Customer shall: (a) not (except as otherwise expressly provided herein) provide, disclose, sublicense or otherwise permit any person to access, use, read, disseminate, transmit, download or reproduce the Software Service or Software Documentation; (b) not adapt, translate, change, customize, enhance, augment, partially delete or alter, or otherwise modify the Software in any manner or to any extent whatsoever, whether in whole or in part; (c) not, to the maximum extent permitted by applicable law disassemble, decompile, reverse engineer, or otherwise in any manner deconstruct all or any part of the Software; (d) not use the Software to act as a “service bureau” or in a time-sharing, application service provider or other similar model to provide the benefit of the use of the Software to any person except as expressly permitted herein; (e) use a Software Service to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party rights, (f) use a Software Service to store or transmit malicious code; (g) not copy the Software; (h) not disclose the results of any software benchmark test or make public comments concerning the Software Service without Ulula’s prior written consent; (i) not have any right to access or obtain a copy of the object code or source code to the Software; (j) not interfere with or disrupt the integrity or performance of any Software Service or third-party data contained therein, (k) not attempt to gain unauthorized access to any Software Service or its related systems or networks, (l) not permit direct or indirect access to or use of any Software Service in a way that circumvents a contractual usage limit, (m) not frame or mirror any part of any Software Service, (n) not access any Software Service in order to build a competitive product or service; (o) use Software Services only in accordance with applicable documentation (e.g. Software Documentation) and applicable laws and government regulations; (p) copy, transmit, distribute, publish or otherwise make available materials featured in the Software Services by Ulula unless expressly granted the right to do so by Ulula herein (e.g. Customer cannot copy survey instruments or grievance protocols and use them for purposes outside of the Software Services), (q) notify Ulula promptly of any unauthorized access or use of the Software and Software Services.

1.8 Customer Responsibilities. The Customer is responsible to (a) reasonably assist, cooperate and facilitate the provision of any Software Services, including the prompt provision of information and assistance that Ulula may reasonably request that is required by Ulula in order to perform its obligations under this Agreement; (b) obtain and maintain any equipment and ancillary services needed to connect to, access or otherwise use the Software Services, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (“Equipment”). The Customer shall also be responsible for maintaining the security of the Equipment, Customer accounts, passwords (including but not limited to administrative and user passwords) and files, and for all uses of the Customer account or the Equipment with or without Customer’s knowledge or consent. Notwithstanding any other term of this Agreement, in the event (and to the extent) that any failure(s) of the Customer to perform any of its obligations under this Agreement or any other Customer act or omission affects, limits or prevents Ulula’s ability to perform any services or obligations (including without limitation the Software Services), in whole or in part, or results in or contributes to Ulula’s inability to perform any such services or obligations, in whole or in part, then Ulula shall be relieved of its obligations to perform the services or obligations hereunder, and shall suffer no prejudice or liability for failing to so perform. 

1.9 Hosted Environment. The Software and any Customer Data, Site Data, Services Data, and Stakeholder Data is hosted on servers located at the Hosting Provider’s facilities. Customer’s use of the Software Services is subject to, and the Customer agrees to comply with any policies and terms of the Hosting Provider that are applicable to the Customer and of which Ulula provides Customer with notice. The Customer acknowledges that the Hosting Provider may, without prior notice, monitor Customer’s conduct and communications when using the Software Services in order to verify compliance with applicable laws and the Hosting Provider’s policies. The Customer acknowledges that the Hosting Provider may cooperate with legal authorities in investigating claims of illegal activity involving the Software Services, Ulula or  the Customer

1.10 Translation Services. If the Software Services include any language translation services (“Translation”), without limiting any other term herein, (a) the Customer acknowledges and agrees that such Translation may include errors, defects, and inaccuracies, (b) Translation may be provided through use of a third party plugin, (c) Ulula recommends oversight by an individual with knowledge of both languages at issue, and (d) Ulula shall not be liable for any losses or damage related to Customer’s use of Translation. 

2. PROFESSIONAL SERVICES

2.1 Ulula Responsibilities. Ulula will provide the Professional Services in exchange for the Fee. Ulula shall commence the provision of the Professional Services pursuant to the dates specified in each Order Form and shall (subject to the following and Customer’s compliance with this Agreement) complete the Professional Services within the Term. Ulula will perform the Implementation Work remotely from Ulula offices..  

2.2 Project Schedule. Ulula agrees to use commercially reasonable efforts to complete the Professional Services in accordance with the Project Schedule described in the Order Form. The Customer agrees that the Project Schedule shall be adjusted to proportionately and reasonably reflect: (a) mutually agreed upon delays confirmed in writing by each party; (b) delays to the extent attributable to Customer’s failure to: (i) respond to or answer any reasonable questions and inquiries of Ulula or (ii) provide Ulula with such information or data that is reasonably requested by Ulula and/or necessary for the performance of the Professional Services; and (c) delays to the extent attributable to a request by the Customer for changes to the Professional Services, and consideration and potential implementation by Ulula, of any such requested change(s). All delivery and completion dates are targets and Ulula shall not be liable for any failure to meet any such dates for any reason. 

2.3 Account Managers. As it relates to the Professional Services, the Ulula Account Manager will collaborate with, and take direction from, the Customer Project Manager.

2.4 Customer Responsibilities. The Customer is responsible to (a) reasonably assist, cooperate and facilitate the provision of any Professional Services, including the prompt provision of information and assistance that Ulula may reasonably request that is required by Ulula in order to perform its obligations under this Agreement; (b) ensure the Customer Account Manager engages in collaborative and consistent communications with the Ulula Account Manager, (c) provide Ulula access with relevant stakeholders that will participate in working sessions, workshops and provide information as necessary to permit the Professional Services to be provided and (d) provide any Customer Materials necessary for the provision of the Professional Services. Notwithstanding any other term of this Agreement, in the event (and to the extent) that any failure(s) of the Customer to perform any of its obligations under this Agreement or any other Customer act or omission affects, limits or prevents Ulula’s ability to perform any services or obligations (including without limitation the Professional Services), in whole or in part, or results in or contributes to Ulula’s inability to perform any such services or obligations, in whole or in part, then Ulula shall be relieved of its obligations to perform the services or obligations hereunder, and shall suffer no prejudice or liability for failing to so perform.

2.5 Expenses. On the condition that Ulula obtains the prior approval of the Customer prior to incurring any expenses related to provision of the Professional Services (e.g. travel, meals, accommodation) Ulula shall be reimbursed for its payment of such expenses on a monthly basis. 

2.6 Added Professional Services. If: (a) in the course of performing the Implementation Work, the parties identify changes required to meet Customer’s specific requirements that are not included in the Implementation Work; (b) the Customer requests changes be made to the Software Services to suit Customer’s particular requirements or after initial implementation requests additional work be completed, or (c) If the Customer requests professional services that are not described in an executed Order Form, Ulula may require the Customer to provide a Change Request (defined below) related to the additional professional services. 

2.7 Change Order. Any request for a change to an Order Form may only be initiated by the Customer’s Project Manager or by Ulula’s Project Manager. Where such a change request is initiated by the Customer, the Customer will submit a written request to Ulula describing the specific changes to the Order Form that are being requested and the reason for the change request (“Change Request”). Ulula will, promptly upon receipt of such a written change request from the Customer, or in the event of its own initiation of a proposed change, prepare and deliver to the Customer a change order (“Change Order”), describing the change requested and the impacts of the change on the project schedule and costs. Upon receipt of the Change Order, the Customer will review the Change Order and the parties will, acting reasonably, discuss whether to proceed or not proceed with the changes in accordance with the Change Order, or to amend the Change Order. If the parties agree to the changes set out in a Change Order, the Change Order will be signed by the Project Managers of both parties (or authorized signatories of the parties if different) and the relevant Order Form will thereafter be deemed amended to reflect the changes set out in such an executed Change Order. 

2.8 Assumptions. The Fees are based on the assumptions below. If any of these assumptions are not met, Ulula reserves the right to: (a) increase the Fees to reflect the additional services rendered as a result of a failure to meet the identified assumptions; provided that Ulula will advise the Customer in writing of any failure to meet assumptions and will use commercially reasonable efforts to mitigate delays and additional costs or fees; (b) adjust the Professional Services, is / as applicable, to reflect the impact of a failure to meet the identified assumptions. Ulula’s assumptions are as follows: The Customer will complete all Customer responsibilities in accordance with the timelines and dates set out in the Order Form or as otherwise reasonably prescribed by Ulula; and the Customer Account Manager is an experienced project manager capable of managing Customer’s roles and activities for the Order Form.

3. DATA; CONFIDENTIALITY; PROPRIETARY RIGHTS

3.1 Definitions:

(a) “Anonymized Data” means Services Data that has been de-identified, aggregated, or anonymized and any data generated or derived by Ulula in the performance of this Agreement that does not identify the Customer or any End User or Stakeholder.

(b) “Community Member” means an individual whose life is, or reasonably could be, impacted by a Customer-identified Site (e.g. an individual that lives in close proximity to the Site, etc.); for certainty, Community Members are not Workers.

(c) “Customer Data” means all data relating to the Customer (including account data) supplied or provided by, imported or uploaded to, or generated by, or otherwise made available to Ulula and the Software by the Customer in connection with this Agreement. 

(d) “Customer Materials” means all of the materials, data (other than Customer Data) and documents that may be provided by the Customer to Ulula in connection with the performance of the Implementation Work, any Professional Services and the Software Services, and as may be more particularly described in an Order Form.

(e) “End User” means a representative of the Customer that is provided access to a User Account; 

(f) “Site” means Customer-identified site related to the Customer’s operations (e.g. a production facility that manufactures Customer products; a mining site that produces materials used in Customer products; a geographical region that is impacted by Customer’s operations). 

(g) “Site Data” means materials, data, and documents provided by the Customer, Workers, and Stakeholders in relation to operations of a Site.

(h) “Services Data” means any data and information generated through the combination of Stakeholder Data, Site Data, and Customer Data, use and performance of the Software Services and analytics performed by Ulula. 

(i) “Stakeholder” means a Community Member or Worker invited to, or identified by, the Customer to participate in a Software Service-based survey or to provide feedback or report a grievance to the Customer via the Software Service. 

(j) “Stakeholder Data” means all data and information, including personal information, about Stakeholders that is provided by the Customer to Ulula or that is provided by Stakeholders to Ulula in connection with the performance of this Agreement and Customer’s use of the Software Services. 

(k) “Worker” means, as it relates to the organization that operates a Site relevant to a Software Service-based survey, an employee, independent contractor, or other compensated individual. 

3.2 Data Use, Confidentiality, and License. 

(a) The Customer hereby grants to Ulula a limited, non-exclusive, non-transferable and fully paid-up license to access, process, store and use the Customer Data, Services Data, Site Data, Stakeholder Data, and Customer Materials only to the extent required in order to perform its obligations under this Agreement and as otherwise permitted herein. Customer Data will be used and correlated with Site Data and Stakeholder Data through the use of the Software Services and performance of Professional Services. The Customer agrees that Ulula may make available Customer Data, Stakeholder Data, Site Data, and Customer Materials to the Hosting Provider, to the extent reasonably required to perform Ulula’s obligations hereunder, and that the Hosting Provider will also store and process Services Data and Anonymized Data. Data may be transferred across country borders and stored or processed in jurisdictions other than the Customer’s local jurisdiction.  

(b) Subject to the licenses granted herein, Ulula acknowledges and agrees that all right, title and interest whatsoever, in and to the Customer Data and Services Data (excluding any Stakeholder Data therein) and Customer Materials, including all intellectual property and other proprietary rights therein is, and shall be, owned solely and exclusively by the Customer. The Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data. 

(c) The Customer is responsible for complying with all applicable laws and is solely responsible to obtain, and represents and warrants to Ulula that is has or shall obtain all necessary consents (including all consents that are required under applicable privacy and data protection laws) to provide Customer Data, Stakeholder Data, Site Data, and Customer Materials to Ulula for storage, processing, disclosure (as permitted herein), disposal, hosting, and any other use required to deliver on Ulula’s obligations described herein in accordance with this Agreement. As a processor of Customer Data, Site Data, and Stakeholder Data, Ulula will store and process Customer Data, Site Data, and Stakeholder Data in a manner consistent with is privacy policy available at https://ulula.com/privacy-policy/ (“Privacy Policy”). Except as expressly provided herein, Ulula does not have any responsibility hereunder to ensure that Customer’s policies or practices related to the processing of Customer Data, Site Data, and Stakeholder Data are adequate or comply with any applicable law applicable to such persons. Upon Customer’s written direction, Ulula will return or destroy Customer Data, Site Data, and/or Stakeholder Data that is personal Information (but may retain the aggregated data it has the right to use under Section 3.3). The Customer acknowledges that in using the Software Services the Customer Data, Site Data, and Stakeholder Data will be transmitted via public telecommunications networks, including the Internet and may be transmitted across provincial, state, or international territorial borders. The Customer shall be solely responsible for determining whether any such transfers comply with applicable laws. Ulula does not guarantee the integrity of, or inadvertent disclosure of, or corruption or loss of Customer Data, Site Data, or Stakeholder Data transmitted via telecommunications networks, including the Internet, or other systems that are not Ulula’s own systems. Ulula shall have no liability or responsibility to the Customer, a User or any other third party, on account of making or facilitating the availability of, through the operation of the Software Services, any Customer Data, Site Data, or Stakeholder Data as and to the extent contemplated hereunder.

3.3 Anonymized Data Use. The Customer understands and agrees that Ulula may create the Anonymized Data by de-identifying, aggregating, and anonymizing any data generated or derived by Ulula in the performance of this Agreement.  For certainty, Anonymized Data cannot, and will not, allow for the identification of the Customer, End Users, or Stakeholders.  The Customer further understands and agrees that the Software Service and Professional Services are offered on the terms provided by Ulula herein because (among other things) Ulula’s ability to generate and use Anonymized Data is core to Ulula’s offering thereof; without the ability to generate and use Anonymized Data as permitted herein, Ulula would not be able to offer the same services and the same prices as those provided by Ulula herein. Without limitation, an example of Ulula’s use of Anonymized Data would allow for certain Software Service subscribers to benchmark the performance results of their facilities to other subscriber facilities located in similar geographic zones or related to similar industry types (such benchmarking would not identify the third party subscriber or the third party site unless the relevant third party expressly agrees to such disclosure in writing on a case-by-case basis). As such, and subject to the foregoing, the Customer agrees that Ulula shall have the unrestricted right to: (a) use any Anonymized Data for its internal business purposes to improve and enhance the Services and for other development, diagnostic, or corrective purposes in connection with the Services and for other purposes Ulula may select in its sole discretion; and (b) use, license, sell, disclose and otherwise commercially exploit the Anonymized Data for any purpose Ulula may select in its sole discretion.  

3.4 Stakeholder Engagement. The Customer agrees that Ulula may, when contacting a Stakeholder for the purposes of this Agreement, provide an option for the Stakeholder to voluntarily agree to receive further communications from Ulula that are unrelated to the operation of this Agreement. Ulula will treat any information collected with the foregoing Stakeholder engagement process consistently with its Privacy Policy. Should Ulula receive any information from the Stakeholder pursuant to such communications, such information will never be linked to the Customer, Customer Data or Customer Materials. 

3.5 Confidentiality. “Confidential Information” means any information, data and materials (regardless of form) disclosed, made available, or otherwise provided by or on behalf of one party (“Disclosing Party)” to the other party (“Receiving Party”) hereunder that: (a) is marked as confidential or proprietary or in a similar fashion at the time of disclosure, or if disclosed orally, is stated to be confidential at the time of disclosure, or (b) that the Receiving Party could reasonably conclude to be confidential to the Disclosing Party. Without limitation, Ulula Confidential Information includes the Software (including information regarding features, functionality, and performance of the Software and the Software Service and all other non-public technical and product information), Software Documentation, and all pricing information. Without limitation, Customer Confidential Information includes any Customer Data, Stakeholder Data, Site Data, Services Data (excluding Anonymized Data), and Customer Materials.

3.6 Confidential Information Use / Protection. Each party agrees: (a) not to use any Confidential Information of the other party for any purpose except in the performance of its obligations under the Agreement or as otherwise expressly permitted hereunder or by the other party in writing; (b) to disclose such Confidential Information of the other party only to its officers, directors, employees and permitted third party subcontractors, advisors, or accountants who have a need to know such Confidential Information for purposes of the Agreement and who are under a duty of confidentiality; (c) to use reasonable efforts to protect such Confidential Information from unauthorized use, access, theft or disclosure in the same manner that it protects its own similar Confidential Information, but in no event with less care than reasonable care in accordance with Section 3.7.

3.7 Security. Ulula will maintain administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, Site Data and Stakeholder Data. Those safeguards will include measures for preventing unauthorized access, use, modification or disclosure of Customer Data, Site Data, and Stakeholder Data except (a) to provide the Software Services and prevent or address service or technical problems, (b) as compelled by law in accordance with Section 3.8 below, or (c) as the Customer expressly permits in writing. The Customer is solely responsible for implementing safeguards to protect the security of its own systems and data when accessing and using the Software Services, including to take precautions against malicious code and viruses and other contaminants.   

3.8 Permitted Disclosure. The foregoing restrictions on disclosure shall not apply with respect to any information which: (a) was or becomes generally known or publicly available through no act or failure to act on the part of the Receiving Party; (b) is known by the Receiving Party without restrictions on disclosure at the time of receiving such information as evidenced by its records; (c) is rightfully furnished to the Receiving Party without restrictions on disclosure by a third party without a breach of such third party’s obligations of confidentiality; (d) is otherwise necessary to establish rights or enforce obligations under this Agreement but only to the extent that any such disclosure is necessary; or (e) is required by law to be disclosed by the Receiving Party, provided that the Receiving Party: (i) gives the Disclosing Party prompt written notice of such requirement prior to such disclosure, (ii) provides assistance in obtaining an order protecting Confidential Information from disclosure, and (iii) discloses information only to the extent required by law and take reasonable steps to remove from the Confidential Information that is required to be disclosed, any information that a reasonable person would conclude is commercially sensitive to the other party.

3.9 Feedback. Submission of feedback, ideas, comments, and suggestions by the Customer to Ulula concerning the Software and Software Services (“Contributions”) is voluntary. Contributions are subject to the following terms:  (a) Contributions become the property of Ulula, and by submitting Contributions, the Customer hereby assigns to Ulula all Customer rights in and to them and waive all moral rights that the Customer and its representatives have; (b) Ulula is free to disclose and use (or refuse to disclose or use) any Contributions at its sole discretion; and (c) the Customer is not entitled to any compensation or reimbursement of any kind under any circumstances in relation to its provision of the Contributions.  

3.10 Ulula Property. Ulula solely and exclusively owns and retains all right, title and interest in and to: (a) the Software Services and Software; (b) all improvements, enhancements or modifications to the items in (a) whether developed by Ulula; (b) any work product, deliverables (including software, applications, inventions, survey questions, protocols, or other technology) developed in connection with Implementation Work and other Professional Services, (c) Anonymized Data; and (d) any and all intellectual property and other proprietary rights in and to any of the foregoing. 

4. PAYMENT OF FEES

4.1 Fees. The  Customer will pay Ulula the Fees described in the Order Form for (as applicable) the Platform Subscription, Software License, Professional Services, and Third-Party Costs (collectively, “Fees”). 

4.2 Payment.  Payment terms are set out in the Order Form (see: Payment Schedule). If no payment terms are specified for Fees or other amounts due hereunder, the Customer shall pay all invoiced amounts within thirty (30) days from the date of the applicable invoice. 

4.3 Taxes. The Fees are exclusive of all taxes imposed by applicable law in connection with such fees, including, sales tax, goods and services tax, use, withholding or excise tax and all other like or similar taxes applicable to the provision of services, and the Customer shall pay or reimburse Ulula for all such applicable taxes (exclusive of taxes based on Ulula’s income).

4.4 Increases. As it relates to Software Services, Ulula reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the first 12 months of the Term (“Initial Period”) or then current renewal Term, upon thirty (30) days prior notice to the Customer (which may be sent by email to the contact identified in the Order Form). 

4.5 Additional Payment Terms. If the Customer fails to pay any amounts within thirty (30) days of their due date such unpaid amount shall bear interest from the due date to the date of payment at the rate of one percent (1.5%) per month (being 18% per annum)  or the maximum permitted by law, whichever is lower, such interest to accrue from day to day and to be compounded on a monthly basis. If the Customer has failed to pay any amounts within sixty (60) calendar days of their due date, such failure shall be deemed to be a material breach of the Agreement by the Customer and in addition to any other remedies available to Ulula, Ulula shall be entitled to suspend, without liability, the provision of any services provided hereunder or in connection herewith until such time as the Customer has paid all outstanding amounts in full. The Customer agrees to pay all costs of collection of unpaid amounts. Payment shall be made without any right of set-off or deduction. Except as expressly provided for herein, all payments made pursuant to this Agreement are non-refundable.  All amounts referenced herein are expressed in United States dollars unless otherwise provided.

5. TERM AND TERMINATION

5.1 Term. Subject to earlier termination as provided below, this Agreement shall last for the Term. As it relates to Software Services, the Term shall be automatically renewed for additional periods of the same duration as the Term (such renewals are included in the definition of the Term provided herein). Either party can avoid such automatic renewal by delivering to the other party a notice of non-renewal no later than thirty (30) days prior to the end of the then-current Term.

5.2 Termination For Cause. A party may terminate the Agreement if: (a) the other party has breached any material provision of the Agreement, including any failure to pay any Fees when due, and such breach continues unremedied for a period of thirty (30) days after written notice thereof (or for the period described in section 4.5 as it relates to non-payment) ; or (b) the other party becomes the subject of bankruptcy, insolvency, reorganization, receivership or other similar proceedings. Upon such termination, the Customer shall pay all unpaid Fees and other amounts due through the effective date of termination and Ulula will make all Stakeholder Data, Site Data, and Customer Data available to Customer for electronic retrieval for a period of thirty (30) days.

5.3 Cancellation. Should the Customer wish to terminate this Agreement for reasons unrelated to those described in 5.2, it may only do so after paying out to Ulula, in full, all Fees owed to Ulula over the course of the Term.  Termination will be effective on the day following Ulula’s receipt of such full payment. Thereafter, Ulula will make all Stakeholder Data, Site Data, and Customer Data available to Customer for electronic retrieval for a period of thirty (30) days. For clarity, Ulula will otherwise have no obligation to deliver Software Services or Professional Services after the effective date of termination, notwithstanding that it will be paid in full for the same.

6. WARRANTY AND DISCLAIMER

6.1 Customer Warranties. The Customer represents and warrants to Ulula that: (a) it is the owner or lawful custodian of the Customer Data, Site Data, and Customer Materials and has the full right and authority and all necessary consents to provide Ulula with the Customer Data, Site Data,  Stakeholder Data, and Customer Materials for the purposes of this Agreement; and (b) the provision of the Customer Data, Site Data, Stakeholder Data, and Customer Materials to Ulula for the purposes of this Agreement is in compliance with all applicable laws.

6.2 Ulula Warranties. Ulula represents and warrants to the Customer that (a) it shall perform the Implementation Work and Professional Services in a professional and workmanlike manner, and (b) the Software Services materially conform with the specifications described in the Software Documentation.

6.3 Exclusions.  EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT ULULA EXPRESSLY DISCLAIMS, TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND ANY WARRANTIES OF NON-INFRINGEMENT OR CONCERNING FUNCTIONALITY, PERFORMANCE, OPERATION, RESULTS OF USE, THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE (OR THAT ALL ERRORS CAN BE CORRECTED) OR MEET CUSTOMER REQUIREMENTS AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW. EXCEPT AS EXPRESSLY SET OUT HEREIN THE SOFTWARE SERVICES, SOFTWARE AND ANY PROFESSIONAL SERVICES AND ANY THIRD PARTY PRODUCTS OR SERVICES ARE PROVIDED “AS IS”. THE CUSTOMER ACKNOWLEDGES THAT THE ENTIRE RISK ARISING OUT OF THE USE OR PERFORMANCE OF THE SOFTWARE, SOFTWARE SERVICES AND ANY OTHER SERVICES OR ASSISTANCE PROVIDED BY ULULA IN CONNECTION THEREWITH, REMAINS WITH THE CUSTOMER. THE CUSTOMER CONFIRMS THAT IT HAS NOT RELIED ON ANY REPRESENTATION, WARRANTY, CONDITION, COVENANT OR PROMISE MADE BY ULULA WHICH HAS NOT BEEN EXPRESSLY STATED IN THIS AGREEMENT.

7. LIABILITY

7.1 No Indirect Damages. ULULA AND ITS AFFILIATES, SUPPLIERS, AND CONTRACTORS AND ALL SUCH PERSON’S OFFICERS, DIRECTORS AND EMPLOYEES (“ULULA PARTIES”) SHALL NOT BE LIABLE TO THE CUSTOMER OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING WITH RESPECT TO: DATA; LOST PROFITS OR SAVINGS OR BUSINESS; BUSINESS INTERRUPTION; OR REPUTATIONAL HARM) OF ANY KIND OR NATURE WHATSOEVER SUFFERED BY THE CUSTOMER OR ANY THIRD PARTY HOWSOEVER CAUSED (WHETHER RESULTING FROM IMPAIRED OR LOST DATA, DATA BREACHES, SOFTWARE OR COMPUTER FAILURE, SUPPORT FAILURE, USE OF THE SERVICES OR ANY OTHER CAUSE).

7.2 Limitation of Liability. ULULA’S (AND ALL ULULA PARTIES) TOTAL LIABILITY AND OBLIGATION TO THE CUSTOMER, IN THE AGGREGATE DURING EACH TERM FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN ANY CONNECTION WITH THIS AGREEMENT AND THE SOFTWARE AND ANY SERVICES WITH RESPECT TO ANY EXPENSE, DAMAGE, LOSS, INJURY, OR LIABILITY OF ANY KIND SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED AND NOTWITHSTANDING ANYTHING TO THE CONTRARY HEREIN SHALL NOT EXCEED THE FEES ACTUALLY PAID BY THE CUSTOMER HEREUNDER FOR THE APPLICABLE SERVICES BETWEEN THE BEGINNING OF THE TERM AND THE TIME IN WHICH THE ACT THAT GAVE RISE TO THE LIABILITY OCCURRED. ULULA SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY DAMAGES OR LOSSES ARISING FROM OR RELATING TO LOSS OR DELETION OF, OR UNAUTHORIZED DISCLOSURE OF, OR INACCURACY OF, OR DAMAGE OR CORRUPTION OF DATA (INCLUDING DUE TO THE HOSTING PROVIDER’S ACTS OR OMISSIONS).

7.3 Limitations Apply. The limitations and exclusions of liability set out herein shall apply regardless of the form of action or theory of liability, including for breach of contract, tort, negligence, by statute and regardless of the form or cause of action, even if such damages are foreseeable or Ulula has been advised of the possibility of such damages. The Customer agrees that the limitations and exclusions contained in this agreement are reasonable based upon the commercial circumstances, and that Ulula would not have entered into the agreement but for Customer’s agreement to such limitations and exclusions.

7.4 Ulula Indemnity. Ulula agrees to indemnify, hold harmless, and, upon the Customer’s request, defend Customer from and against all third party claims, actions and demands, and all resulting liabilities, damages and losses of any type, expenses (including reasonable legal fees), settlements, or judgments suffered or incurred by such parties and that result from or arise out:      Ulula’s breach of its representations and warranties. The foregoing indemnity shall survive any termination or expiration of the Agreement.

7.5 Customer Indemnity. The Customer agrees to indemnify, hold harmless, and, upon Ulula’s request, defend Ulula and the other Ulula Parties from and against all third party claims, actions and demands, and all resulting liabilities, damages and losses of any type, expenses (including reasonable legal fees), settlements, or judgments suffered or incurred by such parties and that result from or arise out: (a) Ulula’s authorized access to and use of any Customer Data, Site Data, and Stakeholder Data (including Customer’s failure to comply with all applicable laws, including any applicable data protection laws), and Customer Materials in the performance of its obligations or otherwise contemplated hereunder or in an Order Form; and (b) Customer’s unauthorized use of the Software and Software Services. The foregoing indemnity shall survive any termination or expiration of the Agreement.

8. THIRD PARTY CONSENTS

8.1 Site, Stakeholder and other third party consents. The Customer acknowledges and agrees that its access to, and use of, certain Software Service offerings is contingent on Customer securing and evidencing proper consents from certain third parties (e.g. consent from the Site to gather Site Data, consent from Stakeholders to gather Stakeholder Data, etc.) Ulula is not responsible to seek, secure, or obtain any such third party consents. To the extent Customer does not (or cannot) secure such third party consents and, as a result, Ulula cannot deliver Professional Services or Software Services or can only deliver such services after a significant delay, the Customer agrees that (a) Ulula is not responsible for such non-delivery or delay, (b) Ulula has no obligation to refund or credit the Customer for any Fees owed or paid by Customer in relation to the non-delivered or delayed services, and (c) Ulula will be paid any any costs it incurs in relation to Customer’s default of the foregoing third party consent obligation.

9. GENERAL TERMS 

9.1 Ulula may invite the Customer to use Beta Services and the Customer may accept or decline the invitation in its sole discretion. Beta Services are for evaluation and testing purposes and may be subject to additional terms. Ulula may discontinue Beta Services at any time in its sole discretion and may never make them generally available. Ulula will have no liability for any harm or damage arising out of or in connection with Beta Services. “Beta Services” means a version of the Software Service that Ulula has not made generally available to customers that is designated as beta, pilot, trial, limited release, pre-release, non-production, evaluation, or similar designation. 

9.2 Ulula may release Improvements and other features and functionality in its discretion. Some features and functionality may be available only with certain versions or editions of the Software Service, subject to additional fees, or subject to additional terms and conditions. Client acknowledges that purchases under this Agreement or any Order Form are not contingent on the delivery of future features or functionality. “Improvements” means new features, functionality, enhancements, upgrades, error corrections and bug fixes to the Software Service.

9.3 Dispute Resolution. The parties agree to use the below process if a dispute occurs between the parties under this, or in relation to, this Agreement so that one party is considering legal action against the other party (“Dispute”):

(a) If a Dispute arises, notice of such Dispute shall be provided by the party considering legal action to the other party. If the parties’ representatives (those most commonly in contact in relation to this Agreement) are not able to resolve the Dispute within 5 business days of the receipt of such notice, then such Dispute shall be escalated to the supervisors of such representatives, who together shall have an additional 10 business days to resolve the Dispute.

(b) If the parties were unable to resolve the Dispute pursuant to section 9.3(b), the parties agree to submit the Dispute to mediation to be held at the same site as that identified in section 9.12.

(c) The Parties will jointly appoint a mutually acceptable mediator.  If they fail to do so within 10 business days from the conclusion of the negotiation period described in section 9.3(a)the mediator shall be appointed by the ADR Institute of Canada, Inc. in accordance with National Mediation Rules of the ADR Institute of Canada, Inc.

(d) The Parties agree to good faith participation in the mediation, and negotiations related thereto, for a period lasting 45 calendar days. 

(e) If the Dispute is not resolved pursuant to section 9.3(d), the Dispute will be referred to and determined by arbitration in accordance with the Arbitration Rules of the ADR Institute of Canada, Inc. (the “ADRIC Rules”). Either party may commence the arbitration.  The site of the arbitration will be the same as that identified in section 9.12.

(f) The language of the arbitration will be English, and the arbitral tribunal will be comprised of one arbitrator. The arbitrator cannot be the mediator that participated in the process described in section 9.3(d). If the parties do not agree on the identity of the arbitrator within 10 business days of the referral to arbitration, then the arbitral tribunal will be appointed by the ADR Institute of Canada, Inc. or pursuant to the procedures set out in the ADRIC Rules. The arbitrator will be conducted on an expedited basis and will render its final award and the reasons for the award within 45 days of the conclusion of the hearing, unless such time is reduced or extended by the tribunal after giving the parties an opportunity to be heard.  Any award or judgment on an award and any award for interim relief may be entered in any court having jurisdiction and will be final and binding on the parties and will not be subject to appeal. No party is prohibited from seeking interim, interlocutory, or expedited remedies (including the use of arbitration rules providing for emergency measures of protection), in any forum having jurisdiction, including remedies to preserve or protect trademarks, Confidential Information, copyrights, or trade secrets or for extraordinary relief such as an injunction or eviction. In addition to any other restriction on the tribunal in this Agreement, in no event will the arbitral tribunal award, or have any jurisdiction to award, punitive or exemplary damages against any party.  No arbitration award will have an effect of preclusion or collateral estoppel in any other adjudication or arbitration. 

9.4 If any provision of this Agreement is found by a court of competent jurisdiction to be unenforceable or invalid in any respect, then the remaining provisions of this Agreement, or the application of such provisions to persons or circumstances other than those as to which it is invalid or unenforceable shall not be affected thereby, and each such provision of this Agreement shall be valid and enforceable to the extent granted by law.

9.5 All waivers must be in writing and signed by the party waiving its rights. 

9.6 This Agreement shall be binding upon and shall enure to the benefit of and be enforceable by each of the parties, their respective successors and permitted assigns. The Customer may not assign or transfer all or any part of this Agreement except (a) with Ulula’s prior written consent or (b) upon sale of its business or assets, to the party making such a purchase, on the condition that such a party is not a direct competitor of Ulula.  Ulula may transfer and assign any of its rights and obligations under this Agreement without consent at any time.

9.7 This Agreement is the complete and exclusive agreement between the parties pertaining to all the matters herein and supersedes and cancels all previous written and oral agreements, proposals, communications and other understandings  between the parties, whether oral or written and may only be amended or modified by written agreement executed by the authorized representatives of the parties. No additional term or condition included in any Customer purchase order or other document that has not previously been agreed to in writing by Ulula shall bind Ulula. 

9.8 Nothing in the Agreement will be deemed to create any third party beneficiary rights in any person or entity not a party to the Agreement. 

9.9 It is expressly understood and agreed that each party shall be acting as an independent contractor in performing its obligations hereunder and shall not be considered or deemed to be an agent, employee, joint venturer or partner of the other party. The Customer does not have any authority of any kind to bind Ulula in any respect whatsoever. 

9.10 In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled to recover costs and attorneys’ fees. 

9.11 All notices requests, claims, demands and other communications required or permitted under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed (and no notice of unsuccessful delivery is received), if transmitted by e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. Notices shall be sent to the respective parties at the addresses for each first written above, as may be changed by either party in accordance with the terms of this Section.

9.12 This Agreement shall be governed by the laws of the Province of Ontario, Canada without regard to its conflict of laws provisions. The parties irrevocably attorn to the exclusive jurisdiction of the Courts of the Province of Ontario in respect of all matters and disputes arising hereunder.  If the Customer is located in a jurisdiction other than Canada, the parties agree that neither the United Nations Convention of the International Sale of Goods or the (U.S.) Uniform Computer Information Transactions Act shall apply to this Agreement. 

9.13 The Agreement may be executed in one or more counterparts, including by PDF or equivalent transmission, each of which when executed shall be deemed to be an original and all of which taken together shall constitute one and the same Agreement. 

9.14 It is the express wish of the parties that this Agreement be drawn up in English. The parties waive any right to require this Agreement be concluded in any other language. 

9.15 Each party agrees to fully comply with all laws applicable to their respective obligations pursuant to the Agreement. 

9.16 Ulula shall be permitted to disclose, without consent, in its marketing, promotional or other similar materials and on its website and orally, the fact that the Customer is a customer of Ulula and the general nature of the relationship between the parties. Ulula may also use the logo of Customer for this limited purpose.

9.17 Words denoting the singular include the plural and vice versa and words denoting any gender include all genders. 

9.18 All usage of the word “including” or “include” or the phrase “e.g.,” in this Agreement shall mean “including, without limitation. 

9.19 The division of this Agreement into separate Articles, Sections, Subsections, Order Forms, and the insertion of headings is for convenience of reference only and shall not affect the construction or interpretation of this Agreement. 

9.20 Neither party shall be liable for delays in or for failures to perform hereunder (excluding payment obligations) due to causes beyond its reasonable control, including acts of God, acts or omissions of the other party or a third party, third party product or service failures (including failures of the Hosting Provider), Internet or telecommunications outages, acts of civil or military authorities, fire, strikes, power, surges or outages, epidemics, flood, earthquakes, riot, or war (Force Majeure Event).  Each party shall use commercially reasonable efforts to provide the other party with notice of any such events. 

9.21 The terms and conditions hereof are the result of negotiations between the parties and the parties agree that this Agreement shall not be construed in favour of or against any party by reason of the extent to which any party or its professional advisors participated in the preparation of this Agreement.

9.22 Any provision which, by its nature, should survive termination of this Agreement shall so survive including without limitation: sections 3,4,6,7,8, and 9.