Synertree CMS Inc. Terms of Service
Date
01/17/2021 1:51 p.m.
Parties
1. Synertree CMS Inc., a company incorporated in Canada (registration
number registration number) having its registered office at Suite 200
- 1847 Marine Drive, West Vancouver under the laws of
Canada having its principal place of business atSuite 200 - 1847 Marine Drive, West
Vancouver (the " Provider"); and
Agreement
1. Definitions
1.1 Except to the extent expressly provided otherwise, in this Agreement:
"Account" means an account enabling a person to access and
use the CubitBlack PM Services, including both administrator accounts and user
accounts;
"Agreement" means this agreement including any Schedules,
and any amendments to this Agreement from time to time;
"Business Day" means any weekday other than a bank or
public holiday in England;
"Business Hours" means the hours of 09:00 to 17:00 PST
on a Business Day;
"Charges" means the following amounts:
(a) the amounts specified in Part 2 of Schedule 1 (CubitBlack PM Services
particulars);
(b) such amounts as may be agreed in writing by the parties from time to
time; and
(c) amounts calculated by multiplying the Provider's standard time-based
charging rates (as notified by the Provider to the Customer before the date
of this Agreement) by the time spent by the Provider's personnel
performing the Support Services (rounded down by the Provider to the
nearest quarter hour);
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"Customer Confidential Information" means:
(a) any information disclosed by or on behalf of the Customer to the
Provider during the Term OR at any time before the termination of this
Agreement (whether disclosed in writing, orally or otherwise) that at the
time of disclosure:
(i) was marked or described as "confidential"; or
(ii) should have been reasonably understood by the Provider to be
confidential; and
(b) the Customer Data;
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"Customer Data" means all data, works and materials:
uploaded to or stored on the Platform by the Customer; transmitted by the
Platform at the instigation of the Customer; supplied by the Customer to
the Provider for uploading to, transmission by or storage on the Platform;
or generated by the Platform as a result of the use of the CubitBlack PM Services
by the Customer;
"Customer Personal Data" means any Personal Data that is
processed by the Provider on behalf of the Customer in relation to this
Agreement, but excluding data with respect to which the
Provider is a data controller;
"Data Protection Laws" means all applicable laws relating
to the processing of Personal Data including, while it is in force and
applicable to Customer Personal Data, the General Data Protection
Regulation (Regulation (EU) 2016/679);
"Documentation" means the documentation for the Hosted
Services produced by the Provider and delivered or made available by the
Provider to the Customer;
"Effective Date" means the date of execution of this
Agreement;
"Force Majeure Event" means an event, or a series of
related events, that is outside the reasonable control of the party
affected (including failures of the internet or any public
telecommunications network, hacker attacks, denial of service attacks,
virus or other malicious software attacks or infections, power failures,
industrial disputes affecting any third party, changes to the law,
disasters, explosions, fires, floods, riots, terrorist attacks and wars);
"CubitBlack PM Services" means CubitBlack PM Services, as
specified in the CubitBlack PM Services Specification, which will be made
available by the Provider to the Customer as a service via the internet in
accordance with this Agreement;
"CubitBlack PM Services Defect" means a defect, error or bug in
the Platform having an adverse effect OR a material adverse effect on
the appearance, operation, functionality or performance of the Hosted
Services, but excluding any defect, error or bug caused by or arising as a
result of:
(a) any act or omission of the Customer or any person authorised by the
Customer to use the Platform or CubitBlack PM Services;
(b) any use of the Platform or CubitBlack PM Services contrary to the
Documentation, whether by the Customer or by any person authorised by the
Customer;
(c) a failure of the Customer to perform or observe any of its obligations
in this Agreement; and/or
(d) an incompatibility between the Platform or CubitBlack PM Services and any
other system, network, application, program, hardware or software not
specified as compatible in the CubitBlack PM Services Specification;
"CubitBlack PM Services Specification" means the specification
for the Platform and CubitBlack PM Services set out in Part 1 of Schedule 1
(CubitBlack PM Services particulars) and in the Documentation;
"Intellectual Property Rights" means all intellectual
property rights wherever in the world, whether registrable or
unregistrable, registered or unregistered, including any application or
right of application for such rights (and these "intellectual property
rights" include copyright and related rights, database rights, confidential
information, trade secrets, know-how, business names, trade names, trade
marks, service marks, passing off rights, unfair competition rights,
patents, petty patents, utility models, semi-conductor topography rights
and rights in designs);
"Maintenance Services" means the general maintenance of
the Platform and CubitBlack PM Services, and the application of Updates and
Upgrades;
"Personal Data" has the meaning given to it in the
General Data Protection Regulation;
"Platform" means the platform managed by the Provider and
used by the Provider to provide the CubitBlack PM Services, including the
application and database software for the CubitBlack PM Services, the system and
server software used to provide the CubitBlack PM Services, and the computer
hardware on which that application, database, system and server software is
installed;
"Schedule" means any schedule attached to the main body of
this Agreement;
"Services" means any services that the Provider provides
to the Customer, or has an obligation to provide to the Customer, under
this Agreement;
"Support Services" means support in relation to the use
of, and the identification and resolution of errors in, the Hosted
Services, but shall not include the provision of training services;
"Supported Web Browser" means the current release from
time to time of Microsoft Edge, Mozilla Firefox, Google Chrome or Apple
Safari, or any other web browser that the Provider agrees in writing
shall be supported;
"Term" means the term of this Agreement, commencing in
accordance with Clause 3.1 and ending in accordance with Clause 3.2;
"Update" means a hotfix, patch or minor version update to
any Platform software; and
"Upgrade" means a major version upgrade of any Platform
software.
2. Credit
2.1 This document was created using a template from SEQ Legal
(http://www.seqlegal.com).
You must retain the above credit. Use of this document without the
credit is an infringement of copyright. However, you can purchase from
us an equivalent document that does not include the credit.
3. Term
3.1 This Agreement shall come into force upon the Effective Date.
3.2 This Agreement shall continue in force indefinitely OR until either party
terminate the contract
, at the beginning of which this Agreement shall terminate
, upon which this Agreement shall
terminate automatically, subject to termination in accordance with Clause
18 or any other provision of this Agreement.
4. CubitBlack PM Services
4.1 The Provider shall ensure that the Platform will, on the Effective
Date, automatically generate an Account for the Customer and provide to
the Customer login details for that Account. OR The Provider shall create
an Account for the Customer and shall provide to the Customer login details
for that Account on or promptly following the Effective Date.
4.2 The Provider hereby grants to the Customer a worldwide, non-exclusive
licence to use the CubitBlack PM Services by means of a Supported Web Browser
for the internal business purposes of the Customer in accordance with
the Documentation during the Term.
4.3 The licence granted by the Provider to the Customer under Clause 4.2 is
subject to the following limitations:
(a) the CubitBlack PM Services may only be used by the officers, employees,
agents and subcontractors of the Customer;
(b) the CubitBlack PM Services may only be used by the named users identified in
Schedule 1 (CubitBlack PM Services particulars) OR identify document
, providing that the Customer may change, add or remove a designated named
user in accordance with the procedure set out therein; and
(c) the CubitBlack PM Services must not be used at any point in time by more than
the number of concurrent users specified in Schedule 1 (CubitBlack PM Services
particulars), providing that the
Customer may add or remove concurrent user licences in accordance with the
procedure set out therein.
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4.4 Except to the extent expressly permitted in this Agreement or required
by law on a non-excludable basis, the licence granted by the Provider to
the Customer under Clause 4.2 is subject to the following prohibitions:
(a) the Customer must not sub-license its right to access and use the
CubitBlack PM Services;
(b) the Customer must not permit any unauthorised person to access or use
the CubitBlack PM Services;
(c) the Customer must not use the CubitBlack PM Services to provide services to
third parties;
(d) the Customer must not republish or redistribute any content or
material from the CubitBlack PM Services; and
(e) the Customer must not make any alteration to the Platform, except as
permitted by the Documentation.
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4.5 The Customer shall use reasonable endeavours, including reasonable
security measures relating to administrator Account access details, to
ensure that no unauthorised person may gain access to the CubitBlack PM Services
using an administrator Account.
4.6 The Provider shall use all reasonable endeavours to maintain the
availability of the CubitBlack PM Services to the Customer at the gateway between
the public internet and the network of the hosting services provider for
the CubitBlack PM Services, but does not guarantee 100% availability.
4.7 For the avoidance of doubt, downtime caused directly or indirectly by
any of the following shall not be considered a breach of this Agreement:
(a) a Force Majeure Event;
(b) a fault or failure of the internet or any public telecommunications
network;
(c) a fault or failure of the Customer's computer systems or networks;
(d) any breach by the Customer of this Agreement; or
(e) scheduled maintenance carried out in accordance with this Agreement.
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4.8 The Customer must comply with Schedule 2 (Acceptable Use Policy), and
must ensure that all persons using the CubitBlack PM Services with the authority
of the Customer or by means of an administrator Account comply with
Schedule 2 (Acceptable Use Policy).
4.9 The Customer must not use the CubitBlack PM Services in any way that causes,
or may cause, damage to the CubitBlack PM Services or Platform or impairment of
the availability or accessibility of the CubitBlack PM Services.
4.10 The Customer must not use the CubitBlack PM Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose
or activity.
4.11 For the avoidance of doubt, the Customer has no right to access the
software code (including object code, intermediate code and source code) of
the Platform, either during or after the Term.
4.12 The Provider may suspend the provision of the CubitBlack PM Services if any
amount due to be paid by the Customer to the Provider under this Agreement
is overdue, and the Provider has given to the Customer at least 30 days'
written notice, following the amount becoming overdue, of its intention to
suspend the CubitBlack PM Services on this basis.
5. Maintenance Services
5.1 The Provider shall provide the Maintenance Services to the Customer
during the Term.
5.2 The Provider shall where practicable give to the Customer at least 10
Business Days' prior written notice of scheduled Maintenance Services that
are likely to affect the availability of the CubitBlack PM Services or are likely
to have a material negative impact upon the CubitBlack PM Services, without
prejudice to the Provider's other notice obligations under this main body
of this Agreement.
5.3 The Provider shall give to the Customer at least 10 Business Days'
prior written notice of the application of an Upgrade to the Platform.
5.4 The Provider shall give to the Customer written notice of the
application of any security Update to the Platform and at least 10
Business Days' prior written notice of the application of any non-security
Update to the Platform.
5.5 The Provider shall provide the Maintenance Services with reasonable
skill and care OR in accordance with the standards of skill and care
reasonably expected from a leading service provider in the Provider's
Financial Technology standard(s).
5.6 The Provider may suspend the provision of the Maintenance Services if
any amount due to be paid by the Customer to the Provider under this
Agreement is overdue, and the Provider has given to the Customer at least
30 days' written notice, following the amount becoming overdue, of its
intention to suspend the Maintenance Services on this basis.
6. Support Services
6.1 The Provider shall provide the Support Services to the Customer during
the Term.
6.2 The Provider shall make available to the Customer a helpdesk in
accordance with the provisions of this main body of this Agreement.
6.3 The Provider shall provide the Support Services with reasonable skill
and care OR in accordance with the standards of skill and care reasonably
expected from a leading service provider in the Provider's industry.
6.4 The Customer may use the helpdesk for the purposes of requesting and,
where applicable, receiving the Support Services; and the Customer must
not use the helpdesk for any other purpose.
6.5 The Provider shall respond promptly to all requests for Support
Services made by the Customer through the helpdesk.
6.6 The Provider may suspend the provision of the Support Services if any
amount due to be paid by the Customer to the Provider under this Agreement
is overdue, and the Provider has given to the Customer at least 30 days'
written notice, following the amount becoming overdue, of its intention to
suspend the Support Services on this basis.
7. Customer Data
7.1 The Customer hereby grants to the Provider a non-exclusive licence to
copy, reproduce, store, distribute, publish, export, adapt, edit and
translate the Customer Data to the extent reasonably required for the
performance of the Provider's obligations and the exercise of the
Provider's rights under this Agreement. The Customer also grants to the
Provider the right to sub-license these rights to its hosting,
connectivity and telecommunications service providers to the extent
reasonably required for the performance of the Provider's obligations and
the exercise of the Provider's rights under this Agreement, subject always
to any express restrictions elsewhere in this Agreement.
7.2 The Customer warrants to the Provider that the Customer Data OR the
Customer Data when used by the Provider in accordance with this Agreement
will not infringe the Intellectual Property Rights or other legal rights
of any person, and will not breach the provisions of any law, statute or
regulation, in any jurisdiction and under any applicable law.
7.3 The Provider shall create a back-up copy of the Customer Data at
least daily, shall ensure that each such copy is sufficient to enable
the Provider to restore the CubitBlack PM Services to the state they were in at
the time the back-up was taken, and shall retain and securely store each
such copy for a minimum period of 30 days.
7.4 Within the period of 1 Business Day following receipt of a written
request from the Customer, the Provider shall use all reasonable
endeavours to restore to the Platform the Customer Data stored in any
back-up copy created and stored by the Provider in accordance with Clause
7.3. The Customer acknowledges that this process will overwrite the
Customer Data stored on the Platform prior to the restoration.
8. Mobile App
8.1 The parties acknowledge and agree that the use of the Mobile App, the
parties' respective rights and obligations in relation to the Mobile App
and any liabilities of either party arising out of the use of the Mobile
App shall be subject to separate terms and conditions, and accordingly this
Agreement shall not govern any such use, rights, obligations or
liabilities.
9. No assignment of Intellectual Property Rights
9.1 Nothing in this Agreement shall operate to assign or transfer any
Intellectual Property Rights from the Provider to the Customer, or from the
Customer to the Provider.
10. Charges
10.1 The Customer shall pay the Charges to the Provider in accordance with
this Agreement.
10.2 If the Charges are based in whole or part upon the time spent by the
Provider performing the Services, the Provider must obtain the Customer's
written consent before performing Services that result in any estimate of
time-based Charges given to the Customer being exceeded or any budget for
time-based Charges agreed by the parties being exceeded; and unless the
Customer agrees otherwise in writing, the Customer shall not be liable to
pay to the Provider any Charges in respect of Services performed in breach
of this Clause 10.2.
10.3 All amounts stated in or in relation to this Agreement are, unless the
context requires otherwise, stated inclusive of any applicable value added
taxes OR exclusive of any applicable value added taxes, which will be
added to those amounts and payable by the Customer to the Provider.
10.4 The Provider may elect to vary any element of the Charges by giving
to the Customer not less than 30 days' written notice of the variation
expiring on any anniversary of the date of execution of this Agreement,
providing that no such variation shall result in an aggregate percentage
increase in the relevant element of the Charges during the Term that
exceeds 2% over the percentage increase, during the same period, in
the Retail Prices Index (all items) published by the UK Office for
National Statistics.
11. Payments
11.1 The Provider shall issue invoices for the Charges to the Customer in
advance of the period to which they relate OR from time to time during
the Term OR on or after the invoicing dates set out in Part 2 of Schedule
1 (CubitBlack PM Services particulars).
11.2 The Customer must pay the Charges to the Provider within the period of
30 days following the issue of an invoice in accordance with this Clause
11 OR the receipt of an invoice issued in accordance with this Clause
11, providing that the Charges must in all cases be paid before the
commencement of the period to which they relate.
11.3 The Customer must pay the Charges by debit card, credit card, direct
debit, bank transfer or cheque (using such payment details as are notified
by the Provider to the Customer from time to time).
11.4 If the Customer does not pay any amount properly due to the Provider
under this Agreement, the Provider may:
(a) charge the Customer interest on the overdue amount at the rate of 8%
per annum above the Bank of England base rate from time to time (which
interest will accrue daily until the date of actual payment and be
compounded at the end of each calendar month); or
(b) claim interest and statutory compensation from the Customer pursuant to
the Late Payment of Commercial Debts (Interest) Act 1998.
12. Provider's confidentiality obligations
12.1 The Provider must:
(a) keep the Customer Confidential Information strictly confidential;
(b) not disclose the Customer Confidential Information to any person
without the Customer's prior written consent, and then only under
conditions of confidentiality approved in writing by the Customer OR no
less onerous than those contained in this Agreement;
(c) use the same degree of care to protect the confidentiality of the
Customer Confidential Information as the Provider uses to protect the
Provider's own confidential information of a similar nature, being at least
a reasonable degree of care;
(d) act in good faith at all times in relation to the Customer
Confidential Information; and
(e) not use any of the Customer Confidential Information for any purpose
other than customer supports.
12.2 Notwithstanding Clause 12.1, the Provider may disclose the Customer
Confidential Information to the Provider's officers, employees,
professional advisers, insurers, agents and subcontractors who have a
need to access the Customer Confidential Information for the performance of
their work with respect to this Agreement and who are bound by a written
agreement or professional obligation to protect the confidentiality of the
Customer Confidential Information.
12.3 This Clause 12 imposes no obligations upon the Provider with respect
to Customer Confidential Information that:
(a) is known to the Provider before disclosure under this Agreement and is
not subject to any other obligation of confidentiality;
(b) is or becomes publicly known through no act or default of the Provider;
or
(c) is obtained by the Provider from a third party in circumstances where
the Provider has no reason to believe that there has been a breach of an
obligation of confidentiality.
12.4 The restrictions in this Clause 12 do not apply to the extent that any
Customer Confidential Information is required to be disclosed by any law or
regulation, by any judicial or governmental order or request, or pursuant
to disclosure requirements relating to the listing of the stock of the
Provider on any recognised stock exchange.
12.5 The provisions of this Clause 12 shall continue in force indefinitely
following the termination of this Agreement OR for a period of 5 years
following the termination of this Agreement, at the end of which period
they will cease to have effect.
13. Data protection
13.1 Each party shall comply with the Data Protection Laws with respect to
the processing of the Customer Personal Data.
13.2 The Customer warrants to the Provider that it has the legal right to
disclose all Personal Data that it does in fact disclose to the Provider
under or in connection with this Agreement.
13.3 The Customer shall only supply to the Provider, and the Provider shall
only process, in each case under or in relation to this Agreement, the
Personal Data of data subjects falling within the categories specified in
Part 1 of Schedule 3 (Data processing information) and of the types
specified in Part 2 of Schedule 3 (Data processing information); and the
Provider shall only process the Customer Personal Data for the purposes
specified in Part 3 of Schedule 3 (Data processing information).
13.4 The Provider shall only process the Customer Personal Data during the
Term and for not more than 30 days following the end of the Term,
subject to the other provisions of this Clause 13.
13.5 The Provider shall only process the Customer Personal Data on the
documented instructions of the Customer (including with regard to transfers
of the Customer Personal Data to any place outside the European Economic
Area), as set out in this Agreement or any other document agreed by the
parties in writing.
13.6 Notwithstanding any other provision of this Agreement, the Provider
may process the Customer Personal Data if and to the extent that the
Provider is required to do so by applicable law. In such a case, the
Provider shall inform the Customer of the legal requirement before
processing, unless that law prohibits such information on important
grounds of public interest.
13.7 The Provider shall ensure that persons authorised to process the
Customer Personal Data have committed themselves to confidentiality or are
under an appropriate statutory obligation of confidentiality.
13.8 The Provider and the Customer shall each implement appropriate
technical and organisational measures to ensure an appropriate level of
security for the Customer Personal Data, including those measures
specified in Part 4 of Schedule 3 (Data processing information).
13.9 The Provider must not engage any third party to process the Customer
Personal Data without the prior specific or general written authorisation
of the Customer. The Provider is hereby authorised by the Customer, as at
the Effective Date, to engage those third parties identified in, or falling
within the processor categories specified in, Part 5 of Schedule 3 (Data
processing information) to process the Customer Personal Data. In the case
of a general written authorisation, the Provider shall inform the Customer
at least 14 days in advance of any intended changes concerning the
addition or replacement of any third party processor, and if the Customer
objects to any such changes before their implementation, then the Provider
must not implement the changes OR the Customer may terminate this
Agreement on 7 days' written notice to the Provider, providing that such
notice must be given within the period of 7 days following the date that
the Provider informed the Customer of the intended changes OR specify
consequences of objection. The Provider shall ensure that
each third party processor is subject to the same OR equivalent legal
obligations as those imposed on the Provider by this Clause 13.
13.10 The Provider shall, insofar as possible and taking into account the
nature of the processing, take appropriate technical and organisational
measures to assist the Customer with the fulfilment of the Customer's
obligation to respond to requests exercising a data subject's rights under
the Data Protection Laws.
13.11 The Provider shall assist the Customer in ensuring compliance with
the obligations relating to the security of processing of personal data,
the notification of personal data breaches to the supervisory authority,
the communication of personal data breaches to the data subject, data
protection impact assessments and prior consultation in relation to
high-risk processing under the Data Protection Laws.
13.12 The Provider shall make available to the Customer all information
necessary to demonstrate the compliance of the Provider with its
obligations under this Clause 13 and the Data Protection Laws.
13.13 The Provider shall, at the choice of the Customer, delete or return
all of the Customer Personal Data to the Customer after the provision of
services relating to the processing, and shall delete existing copies save
to the extent that applicable law requires storage of the relevant
Personal Data.
13.14 The Provider shall allow for and contribute to audits, including
inspections, conducted by the Customer or another auditor mandated by the
Customer in respect of the compliance of the Provider's processing of
Customer Personal Data with the Data Protection Laws and this Clause 13.
The Provider may charge the Customer at its standard time-based charging
rates for any work performed by the Provider at the request of the
Customer pursuant to this Clause 13.14.
13.15 If any changes or prospective changes to the Data Protection Laws
result or will result in one or both parties not complying with the Data
Protection Laws in relation to processing of Personal Data carried out
under this Agreement, then the parties shall use their best endeavours
promptly to agree such variations to this Agreement as may be necessary to
remedy such non-compliance.
14. Warranties
14.1 The Provider warrants to the Customer that:
(a) the Provider has the legal right and authority to enter into this
Agreement and to perform its obligations under this Agreement;
(b) the Provider will comply with all applicable legal and regulatory
requirements applying to the exercise of the Provider's rights and the
fulfilment of the Provider's obligations under this Agreement; and
(c) the Provider has or has access to all necessary know-how, expertise
and experience to perform its obligations under this Agreement.
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14.2 The Provider warrants to the Customer that:
(a) the Platform and CubitBlack PM Services will conform in all material
respects with the CubitBlack PM Services Specification;
(b) Synertree CMS Inc. will put its best efforts to ensure the CubitBlack PM Services
will be
free from Defects;
(c) the application of Updates and Upgrades to the Platform by the
Provider will not introduce any CubitBlack PM Services Defects into the Hosted
Services;
(d) the Platform will be free from viruses, worms, Trojan horses,
ransomware, spyware, adware and other malicious software programs; and
(e) the Platform will incorporate security features reflecting the
requirements of good industry practice.
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14.3 The Provider warrants to the Customer that the CubitBlack PM Services, when
used by the Customer in accordance with this Agreement, will not breach
any laws, statutes or regulations applicable under English law.
14.4 The Provider warrants to the Customer that the CubitBlack PM Services, when
used by the Customer in accordance with this Agreement, will not infringe
the Intellectual Property Rights of any person in any jurisdiction and
under any applicable law.
14.5 If the Provider reasonably determines, or any third party alleges,
that the use of the CubitBlack PM Services by the Customer in accordance with this
Agreement infringes any person's Intellectual Property Rights, the Provider
may at its own cost and expense:
(a) modify the CubitBlack PM Services in such a way that they no longer infringe
the relevant Intellectual Property Rights; or
(b) procure for the Customer the right to use the CubitBlack PM Services in
accordance with this Agreement.
14.6 The Customer warrants to the Provider that it has the legal right and
authority to enter into this Agreement and to perform its obligations under
this Agreement.
14.7 All of the parties' warranties and representations in respect of the
subject matter of this Agreement are expressly set out in this Agreement.
To the maximum extent permitted by applicable law, no other warranties or
representations concerning the subject matter of this Agreement will be
implied into this Agreement or any related contract.
15. Acknowledgements and warranty limitations
15.1 The Customer acknowledges that complex software is never wholly free
from defects, errors and bugs; and subject to the other provisions of this
Agreement, the Provider gives no warranty or representation that the Hosted
Services will be wholly free from defects, errors and bugs.
15.2 The Customer acknowledges that complex software is never entirely free
from security vulnerabilities; and subject to the other provisions of this
Agreement, the Provider gives no warranty or representation that the Hosted
Services will be entirely secure.
15.3 The Customer acknowledges that the CubitBlack PM Services are designed to be
compatible only with that software and those systems specified as
compatible in the CubitBlack PM Services Specification; and the Provider does not
warrant or represent that the CubitBlack PM Services will be compatible with any
other software or systems.
15.4 The Customer acknowledges that the Provider will not provide any
legal, financial, accountancy or taxation advice under this Agreement or
in relation to the CubitBlack PM Services; and, except to the extent expressly
provided otherwise in this Agreement, the Provider does not warrant or
represent that the CubitBlack PM Services or the use of the CubitBlack PM Services by the
Customer will not give rise to any legal liability on the part of the
Customer or any other person.
16. Limitations and exclusions of liability
16.1 Nothing in this Agreement will:
(a) limit or exclude any liability for death or personal injury resulting
from negligence;
(b) limit or exclude any liability for fraud or fraudulent
misrepresentation;
(c) limit any liabilities in any way that is not permitted under applicable
law; or
(d) exclude any liabilities that may not be excluded under applicable law.
16.2 The limitations and exclusions of liability set out in this Clause 16
and elsewhere in this Agreement:
(a) are subject to Clause 16.1; and
(b) govern all liabilities arising under this Agreement or relating to the
subject matter of this Agreement, including liabilities arising in
contract, in tort (including negligence) and for breach of statutory duty,
except to the extent expressly provided otherwise in this Agreement.
16.3 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any losses arising out of a Force Majeure
Event.
16.4 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any loss of profits or anticipated savings.
16.5 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any loss of revenue or income.
16.6 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any loss of use or production.
16.7 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any loss of business, contracts or
opportunities.
16.8 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any loss or corruption of any data, database
or software; providing that this Clause 16.8 shall not protect the
Provider unless the Provider has fully complied with its obligations under
Clause 7.3 and Clause 7.4.
16.9 Neither party shall be liable to the other party OR The Provider
shall not be liable to the Customer OR The Customer shall not be liable
to the Provider in respect of any special, indirect or consequential loss
or damage.
17. Force Majeure Event
17.1 If a Force Majeure Event gives rise to a failure or delay in either
party performing any obligation under this Agreement (other than any
obligation to make a payment), that obligation will be suspended for the
duration of the Force Majeure Event.
17.2 A party that becomes aware of a Force Majeure Event which gives rise
to, or which is likely to give rise to, any failure or delay in that party
performing any obligation under this Agreement, must:
(a) promptly notify the other; and
(b) inform the other of the period for which it is estimated that such
failure or delay will continue.
17.3 A party whose performance of its obligations under this Agreement is
affected by a Force Majeure Event must take reasonable steps to mitigate
the effects of the Force Majeure Event.
18. Termination
18.1 Either party may terminate this Agreement by giving to the other party
at least 30 days' written notice of termination.
18.2 Either party may terminate this Agreement immediately by giving
written notice of termination to the other party if the other party commits
a material breach of this Agreement.
18.3 Either party may terminate this Agreement immediately by giving
written notice of termination to the other party if:
(a) the other party:
(i) is dissolved;
(ii) ceases to conduct all (or substantially all) of its business;
(iii) is or becomes unable to pay its debts as they fall due;
(iv) is or becomes insolvent or is declared insolvent; or
(v) convenes a meeting or makes or proposes to make any arrangement or
composition with its creditors;
(b) an administrator, administrative receiver, liquidator, receiver,
trustee, manager or similar is appointed over any of the assets of the
other party;
(c) an order is made for the winding up of the other party, or the other
party passes a resolution for its winding up (other than for the purpose
of a solvent company reorganisation where the resulting entity will assume
all the obligations of the other party under this Agreement); or
(d) if that other party is an individual:
(i) that other party dies;
(ii) as a result of illness or incapacity, that other party becomes
incapable of managing his or her own affairs; or
(iii) that other party is the subject of a bankruptcy petition or order.
19. Effects of termination
19.1 Upon the termination of this Agreement, all of the provisions of this
Agreement shall cease to have effect, save that the following provisions of
this Agreement shall survive and continue to have effect (in accordance
with their express terms or otherwise indefinitely): Clauses 1, 4.11, 8,
11.2, 11.4, 12, 13.1, 13.3, 13.4, 13.5, 13.6, 13.7, 13.8, 13.9, 13.10,
13.11, 13.12, 13.13, 13.14, 13.15, 16, 19, 22 and 23.
19.2 Except to the extent that this Agreement expressly provides otherwise,
the termination of this Agreement shall not affect the accrued rights of
either party.
19.3 Within 30 days following the termination of this Agreement for any
reason:
(a) the Customer must pay to the Provider any Charges in respect of
Services provided to the Customer before the termination of this Agreement;
and
(b) the Provider must refund to the Customer any Charges paid by the
Customer to the Provider in respect of Services that were to be provided to
the Customer after the termination of this Agreement,
without prejudice to the parties' other legal rights.
20. Notices
20.1 Any notice from one party to the other party under this Agreement must
be given by one of the following methods (using the relevant contact
details set out in Clause 20.2 and Part 3 of Schedule 1 (CubitBlack PM Services
particulars)):
(a) delivered personally or sent by courier, in which case the notice
shall be deemed to be received upon delivery; or
(b) sent by recorded signed-for post, in which case the notice shall be
deemed to be received 2 Business Days following posting,
additional list items
providing that, if the stated time of deemed receipt is not within Business
Hours, then the time of deemed receipt shall be when Business Hours next
begin after the stated time.
20.2 The Provider's contact details for notices under this Clause 20 are as
follows: contact details.
20.3 The addressee and contact details set out in Clause 20.2 and Part 3 of
Schedule 1 (CubitBlack PM Services particulars) may be updated from time to time
by a party giving written notice of the update to the other party in
accordance with this Clause 20.
21. Subcontracting
21.1 The Provider must not subcontract any of its obligations under this
Agreement without the prior written consent of the Customer, providing
that the Customer must not unreasonably withhold or delay the giving of
such consent.
OR
21.1 Subject to any express restrictions elsewhere in this Agreement, the
Provider may subcontract any of its obligations under this Agreement,
providing that the Provider must give to the Customer, promptly following
the appointment of a subcontractor, a written notice specifying the
subcontracted obligations and identifying the subcontractor in question.
21.2 The Provider shall remain responsible to the Customer for the
performance of any subcontracted obligations.
21.3 Notwithstanding the provisions of this Clause 21 but subject to any
other provision of this Agreement, the Customer acknowledges and agrees
that the Provider may subcontract to any reputable third party hosting
business the hosting of the Platform and the provision of services in
relation to the support and maintenance of elements of the Platform.
22. General
22.1 No breach of any provision of this Agreement shall be waived except
with the express written consent of the party not in breach.
22.2 If any provision of this Agreement is determined by any court or other
competent authority to be unlawful and/or unenforceable, the other
provisions of this Agreement will continue in effect. If any unlawful
and/or unenforceable provision would be lawful or enforceable if part of it
were deleted, that part will be deemed to be deleted, and the rest of the
provision will continue in effect (unless that would contradict the clear
intention of the parties, in which case the entirety of the relevant
provision will be deemed to be deleted).
22.3 This Agreement may not be varied except by a written document signed
by or on behalf of each of the parties.
22.4 Neither party may without the prior written consent of the other party
assign, transfer, charge, license or otherwise deal in or dispose of any
contractual rights or obligations under this Agreement.
22.5 This Agreement is made for the benefit of the parties, and is not
intended to benefit any third party or be enforceable by any third party.
The rights of the parties to terminate, rescind, or agree any amendment,
waiver, variation or settlement under or relating to this Agreement are not
subject to the consent of any third party.
22.6 Subject to Clause 16.1, this Agreement shall constitute the entire
agreement between the parties in relation to the subject matter of this
Agreement, and shall supersede all previous agreements, arrangements and
understandings between the parties in respect of that subject matter.
22.7 This Agreement shall be governed by and construed in accordance with
English law.
22.8 The courts of England shall have exclusive jurisdiction to
adjudicate any dispute arising under or in connection with this Agreement.
23. Interpretation
23.1 In this Agreement, a reference to a statute or statutory provision
includes a reference to:
(a) that statute or statutory provision as modified, consolidated and/or
re-enacted from time to time; and
(b) any subordinate legislation made under that statute or statutory
provision.
23.2 The Clause headings do not affect the interpretation of this
Agreement.
23.3 References in this Agreement to "calendar months" are to the 12 named
periods (January, February and so on) into which a year is divided.
23.4 In this Agreement, general words shall not be given a restrictive
interpretation by reason of being preceded or followed by words indicating
a particular class of acts, matters or things.
Execution
By clicking on the checkbox “ I have read and agree to the Terms of
Service” when registered, the parties have signed this agreement and have
indicated their acceptance of this Agreement by executing it below.
SIGNED BY individual name on ..............., the Provider
OR individual name on ..............., duly authorised for
and on behalf of the Provider:
........................................
SIGNED BY individual name on ..............., the Customer
OR individual name on ..............., duly authorised for
and on behalf of the Customer:
........................................
Schedule 1 (CubitBlack PM Services particulars)
1. Specification of CubitBlack PM Services
Synertree CMS Inc.
CubitBlack Portfolio Management Engine
2. Financial provisions
Service fee is $350 per month billed annually, or $500 paid monthly.
3. Contractual notices
Customers may cancel anytime but only there will be no refunds or
prorated refunds for the year.
4. Investment Advice Disclaimer
Synertree Capital Management Services Inc. (Synertree) is not a registered
investment management under BCSC. Synertree does not advise on any investment
products nor provide any financial planning advice. The firm however certifies that
all blogs, financial content, and views expressed herein accurately reflect the
company’s views as to the subject markets, securities and issuers. All content in
this website are based on data obtained from sources we believe to be reliable, but
are not guaranteed as to accuracy and do not purport to be complete. Additional
information on the securities mentioned in this report is available upon request.
Because of individual objectives, all information or data on this website should not
be construed as advice designed to meet the particular investment needs of any
investor. Any opinions expressed herein are subject to change. No content on this
website is to be construed as an offer or the solicitation of an offer to buy or
sell the securities herein mentioned. The data selection, analysis and views
expressed herein are solely those of Synertree only.
Schedule 2 (Acceptable Use Policy)
1. Introduction
1.1 This acceptable use policy (the "Policy") sets out the
rules governing:
(a) the use of the website at synertree.ca, any successor website, and
the services available on that website or any successor website (the " Services");
and
(b) the transmission, storage and processing of content by you, or by any
person on your behalf, using the Services ("Content").
1.2 References in this Policy to "you" are to any customer for the
Services and any individual user of the Services (and "your" should be
construed accordingly); and references in this Policy to "us" are to identify
provider (and "we" and "our" should be construed
accordingly).
1.3 By using the Services, you agree to the rules set out in this Policy.
1.4 We will ask for your express agreement to the terms of this Policy
before you upload or submit any Content or otherwise use the Services.
1.5 You must be at least 18 years of age to use the Services; and by
using the Services, you warrant and represent to us that you are at least
18 years of age.
1.6 You must be a registered financial professional to use the Services; and by
using the Services, you warrant and represent to us that you are registered
financial professional
in accordance to NI31-103.
2. General usage rules
2.1 You must not use the Services in any way that causes, or may cause,
damage to the Services or impairment of the availability or accessibility
of the Services.
2.2 You must not use the Services:
(a) in any way that is unlawful, illegal, fraudulent or harmful; or
(b) in connection with any unlawful, illegal, fraudulent or harmful purpose
or activity.
2.3 You must ensure that all Content complies with the provisions of this
Policy.
3. Unlawful Content
3.1 Content must not be illegal or unlawful, must not infringe any person's
legal rights, and must not be capable of giving rise to legal action
against any person (in each case in any jurisdiction and under any
applicable law).
3.2 Content, and the use of Content by us in any manner licensed or
otherwise authorised by you, must not:
(a) be libellous or maliciously false;
(b) be obscene or indecent;
(c) infringe any copyright, moral right, database right, trade mark right,
design right, right in passing off, or other intellectual property right;
(d) infringe any right of confidence, right of privacy or right under data
protection legislation;
(e) constitute negligent advice or contain any negligent statement;
(f) constitute an incitement to commit a crime, instructions for the
commission of a crime or the promotion of criminal activity;
(g) be in contempt of any court, or in breach of any court order;
(h) constitute a breach of racial or religious hatred or discrimination
legislation;
(i) be blasphemous;
(j) constitute a breach of official secrets legislation; or
(k) constitute a breach of any contractual obligation owed to any person.
additional list items
3.3 You must ensure that Content is not and has never been the subject of
any threatened or actual legal proceedings or other similar complaint.
4. Graphic material
4.1 Content must be appropriate for all persons who have access to or are
likely to access the Content in question, and in particular for children
over 12 years of age.
4.2 Content must not depict violence in an explicit, graphic or gratuitous
manner.
4.3 Content must not be pornographic or sexually explicit.
5. Factual accuracy
5.1 Content must not be untrue, false, inaccurate or misleading.
5.2 Statements of fact contained in Content and relating to persons (legal
or natural) must be true; and statements of opinion contained in Content
and relating to persons (legal or natural) must be reasonable, be honestly
held and indicate the basis of the opinion.
6. Negligent advice
6.1 Content must not consist of or contain any legal, financial,
investment, taxation, accountancy, medical or other professional advice,
and you must not use the Services to provide any legal, financial,
investment, taxation, accountancy, medical or other professional advisory
services.
6.2 Content must not consist of or contain any advice, instructions or
other information that may be acted upon and could, if acted upon, cause
death, illness or personal injury, damage to property, or any other loss or
damage.
7. Etiquette
7.1 Content must be appropriate, civil and tasteful, and accord with
generally accepted standards of etiquette and behaviour on the internet.
7.2 Content must not be offensive, deceptive, threatening, abusive,
harassing, menacing, hateful, discriminatory or inflammatory.
7.3 Content must not be liable to cause annoyance, inconvenience or
needless anxiety.
7.4 You must not use the Services to send any hostile communication or any
communication intended to insult, including such communications directed at
a particular person or group of people.
7.5 You must not use the Services for the purpose of deliberately upsetting
or offending others.
7.6 You must not unnecessarily flood the Services with material relating to
a particular subject or subject area, whether alone or in conjunction with
others.
7.7 You must ensure that Content does not duplicate other content available
through the Services.
7.8 You must ensure that Content is appropriately categorised.
7.9 You should use appropriate and informative titles for all Content.
7.10 You must at all times be courteous and polite to other users of the
Services.
8. Marketing and spam
8.1 You must not without our written permission use the Services for any
purpose relating to the marketing, advertising, promotion, sale or supply
of any product, service or commercial offering.
8.2 Content must not constitute or contain spam, and you must not use the
Services to store or transmit spam - which for these purposes shall include
all unlawful marketing communications and unsolicited commercial
communications.
8.3 You must not send any spam or other marketing communications to any
person using any email address or other contact details made available
through the Services or that you find using the Services.
8.4 You must not use the Services to promote or operate any chain letters,
Ponzi schemes, pyramid schemes, matrix programs, "get rich quick" schemes
or similar letters, schemes or programs.
9. Gambling
9.1 You must not use the Services for any purpose relating to gambling,
gaming, betting, lotteries, sweepstakes, prize competitions or any
gambling-related activity.
10. Monitoring
10.1 You acknowledge that we may actively monitor the Content and the use
of the Services OR we do not actively monitor the Content or the use of
the Services.
11. Data mining
11.1 You must not conduct any systematic or automated data scraping, data
mining, data extraction or data harvesting, or other systematic or
automated data collection activity, by means of or in relation to the
Services.
12. Hyperlinks
12.1 You must not link to any material using or by means of the Services
that would, if it were made available through the Services, breach the
provisions of this Policy.
13. Harmful software
13.1 The Content must not contain or consist of, and you must not promote
or distribute by means of the Services, any viruses, worms, spyware, adware
or other harmful or malicious software, programs, routines, applications or
technologies.
13.2 The Content must not contain or consist of, and you must not promote
or distribute by means of the Services, any software, programs, routines,
applications or technologies that will or may have a material negative
effect upon the performance of a computer or introduce material security
risks to a computer.
Schedule 3 (Data processing information)
1. Categories of data subject
Personal data and investment input data.
2. Types of Personal Data
All data provided during the registration.
3. Purposes of processing
For Synertree to validate registrant and contact customers for updates.
No third party will have access to the data by any means.