Last Upgraded: 06.05.2024
The Upgraded software-as-a-service Terms of Service, together with the Sign-Up Form, the Professional Services Addendum, and any attachments hereto, collectively the “Agreement” and all as amended from time to time, form an agreement between deepND Inc. (“Upgraded”) and the customer (“Customer”) accessing, downloading, installing or otherwise using (the terms “use” and “using” will refer to any of the foregoing) the Services. This Agreement is entered into on the earlier of the date Customer first uses any part of the Services, or the date Customer agrees to be bound by this Agreement (the “Effective Date”). Each of Upgraded and Customer shall individually be referred to as a “Party” and jointly as the “Parties”. This Agreement sets forth the terms and conditions that govern the provision and use of the Services.
BY USING THE SERVICES (INCLUDING THE WEBSITE), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 11(k). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THIS AGREEMENT, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF THE SERVICES. CUSTOMER REPRESENTS AND WARRANTS TO Upgraded THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE SERVICES ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO Upgraded THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THIS AGREEMENT.THE SERVICES MAY NOT BE ACCESSED FOR PURPOSES OF MONITORING THEIR AVAILABILITY, PERFORMANCE OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.Upgraded’S DIRECT COMPETITORS ARE PROHIBITED FROM ACCESSING THE SERVICES, EXCEPT WITH Upgraded’S PRIOR WRITTEN CONSENT.
(a) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Upgraded SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Upgraded Property.
(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or herea2er in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, sePlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
(e) “ModificaIons” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(f) “Personal InformaIon” means information about an identifiable individual provided by Customer under this Agreement.
(g) “Upgraded SaaS Services” means: (i) the services through which Upgraded hosts and makes available the Upgraded SaaS Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Upgraded SaaS Services” does not include Professional Services.
(h) “Services” means the Upgraded SaaS Services and the Professional Services, collectively, and any part thereof.
(i) “Professional Services” means the consulting, training and other professional services described in the Professional Services Order Form. The term “Professional Services” does not include Upgraded SaaS Services.
(j) “Professional Services Order Form” means an order form that references this Agreement and Professional Services to be provided by Upgraded and that is executed by both Parties or otherwise accepted by Customer.
(k) “Sign Up Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.
(l) “Website” means any websites used by Upgraded to provide the Upgraded SaaS Services, including the websites located at https://helloUpgraded.io/Professional Services AddendumTHIS PROFESSIONAL SERVICES ADDENDUM (“Professional Services Addendum”) is entered into the earlier of the date the Customer uses the Professional Services or the date Customer agrees to be bound by this Professional Services Addendum, by and between deepND Inc. (“Upgraded”) and Customer, pursuant to the Upgraded Terms of Use (the “Agreement”).
1. Effect on this Addendum.
This Professional Services Addendum is part of, and subject to and governed by the terms and conditions of, the Agreement, as amended from time to time. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement.
2. Definitions
(a) “Application” means an application utilized by the Customer can apply for a Funding Program for which Upgraded has provided the Professional Services;
(b) “Awarded Funds” means any Funding Program in which of which Customer has received funds following a submitted Application;
(c) “Funder” means the organization, agency, or other entity making the Funding Program available; and
(d) “Funding Program” means a sum of money given or made available by a government or other organization for a particular purpose, including grants and other non-dilutive funding.
(e) “Request Form” means the request form completed by the Customer requesting specific assistance with an Application in the form provided by Upgraded to Customer.
3. Services
(a) Upgraded will use commercially reasonable efforts to deliver the following professional services (the “Professional Services”):
(i) Review information provided by Customer to assist in determining whether the Customer is eligible for available Funding Programs, and reporting to Customer on specific Funding Programs;
(ii) Gather the information required to complete the Application, including engaging in iterative conversations with the Customer;
(iii) Assist the Customer in preparing the Application;
(iv) Preparing and utilizing an email account for the purpose of the Application (the “Customer Application Email”) and provide user access to Customer;
(v) Assist in responding to any follow-up questions by the Funder following the submission of the Application; and
(vi) The other services and obligations described in each Request Form.
(b) All Professional Services will be performed remotely.
(c) Upgraded will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Upgraded’s resources may include employees of Upgraded or subcontractors.
(d) Each Grant Request will be in a form substantially similar to the form of the Grant Request provided by Upgraded. Each Grant Request will be duly executed as an amendment to this Agreement, and each Grant Request will be deemed to incorporate by reference the provisions of this Agreement (excluding the provision of other Grant Requests) unless the applicable Grant Request expressly provides otherwise.
4. Professional Services Fees
(a) In consideration for the Professional Services performed or provided to Customer under this Professional Services Addendum, Customer will pay to Upgraded 20% of the Awarded Funds on a pre-tax basis (the “Professional Services Fee”). In the event the Request Form does not set out such fees, the Professional Services Fee will be calculated as 20% of the Awarded Funds.
(b) Success-Based Fees. (i) In the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, and in the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee. Notwithstanding the foregoing, in the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, Customer will not owe any Professional Services Fees to Upgraded if Customer is not approved for the Funding Program indicated in the Grant Request. (ii) Notwithstanding the foregoing, Customer agrees that the Professional Services Fee will equally be payable to Upgraded in the event Customer receives Awarded Funds from Funder for a different Funding Program or in a subsequent Funding Program award cycle using the Application. (iii) Upon the earlier of notification by the Funder or the Customer that Customer has been approved for a Funding Program, Upgraded will prepare and provide to Customer an invoice for the Professional Services Fee.
(c) Project-Based Fees. In the event the Professional Services Fee is a Project-Based Fee as indicated on the Grant Request, Customer will owe the Professional Services Fees to Upgraded regardless of whether the Application is successful.
(d) Hybrid Fees.
(i) In the event the Professional Services Fee is a Hybrid Fee as indicated on the Grant Request, Customer will owe the Deposit to Upgraded regardless of whether the Application is successful. It is non-refundable. Customer will owe the Success-Based Fee as detailed in Section 4B.
(e) All payments for the Professional Services Fee will be due and payable within 30 days of Upgraded’s provision of the invoice to Customer.
(f) In the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee. (f) Any suspension of the Professional Services by Upgraded pursuant to the Agreement will not excuse Customer from its obligation to make payments for the Professional Services Fees.
1.21 Debt Funding: The Company shall pay to Upgraded a fee of 2% of the loan balance outstanding per year, or 5% of the loan amount disbursed if fully paid back in under 12 months, by the lender introduced by the Finder if, and only if, the loan amount is credited to the Company’s bank account on or before twelve (12) months from the Effective Date.
1.211 The first finder’s fee payment (2% of the principal loan balance) shall be payable no later than ten (10) business days after the loan amount is received by the Company.
1.212 The Company shall pay to Upgraded a fee of 4% of the loan balance outstanding per year on all successful 0%-interest government financing applications. The first payment (4% of the principal amount) shall be payable no later than ten (10) business days after the loan amount is received by the Company.
1.22 Equity Funding: The Company shall pay to the Finder a fee of $5,500 USD for organizing between 10 and 30 qualified investor meetings per month for a period of 3 months (30-90 meetings total).
1.221 If/when equity funding deal is reached, 5-8% of the principal amount raised shall be paid to the Finder, the exact percentage term to be previously agreed upon with the Finder.
5. Customer Dependencies
(a) Customer will cooperate with Upgraded in the performance of the Professional Services and in the development any Application, by completing all customer dependencies listed in the Request Form and the following activities (collectively the “Customer Dependencies”):
(i) Collaborating with Upgraded to provide all information reasonably required in order for Upgraded to provide the Professional Services;
(ii) Reviewing the Funding Program to confirm Customer’s eligibility;
(iii) Providing accurate and complete information to Upgraded, including full disclosure of any information reasonably relevant to the Application;
(iv) Finalizing and reviewing the Application to ensure accuracy and completion;
(v) Complying with all terms of the Application and the Funding Program, including hiring and recruiting eligible employees if necessary;
(vi) Notifying Upgraded immediately upon being approved for any Funding Program following an Application;
(vii) Monitoring the Customer Application Email on an ongoing basis; and
(viii) Maintaining all accounting and records.
(b) Customer acknowledges and agrees that if it has not performed the Customer Dependencies including but not limited to providing provided all necessary cooperation or information to Upgraded, or if Upgraded is otherwise denied or delayed access or information by Customer, then Upgraded will be excused, without liability, from performing any further Professional Services. Such failure to perform the Professional Services resulting from Customer’s failures will not relieve Customer from any payment obligations to Upgraded.
(c) Customer acknowledges and agrees that the ultimate responsibility for the Application is with the Customer.
(d) Upon receiving any confirmation that an Application has been successful, Customer will immediately provide Upgraded all relevant details of the Funding Program, including but not limited to the amount, duration, any further requirements, and any further information required by Upgraded to comply with its obligations.
6. No Assignment or Transfer of Intellectual Property
Without limiting Section 3 of the Agreement, Upgraded retains all ownership and Intellectual Property Rights in and to: (a) the Professional Services; (b) anything developed or delivered by or on behalf of Upgraded under this Professional Services Addendum; and (c) any Modifications or enhancements to (a) or (b). All rights not expressly granted by Upgraded to Customer under this Professional Services Addendum are reserved.
7. Change Requests and Termination.
(a) The Parties may agree to changes in the scope of the Professional Services by mutual agreement in writing.
(b) Either Party may terminate any Request Form at any time during the Request Form Term upon written notice to the other Party. In the event that Customer terminates the Request Form, Customer remains responsible for the Professional Services Fees, and will compensate Upgraded for all work completed until the date of termination at Upgraded’s then-current rates. In the event that Upgraded terminates the Request Form during the Request Form Term, Customer will not be liable to Upgraded for any Professional Services Fees incurred by Upgraded related to such Request Form.
8. Limitation of Liability.
NOTWITHSTANDING SECTION 9 OF THE AGREEMENT, NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC REQUEST FORM OUT OF WHICH THE LIABILITY AROSE. Upgraded’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE AGREEMENT.
8. Disclaimers
Without limiting Section 9 of the Agreement: (a) Upgraded will have no liability for loss or recovery of data or records or for Customer’s failure to properly back-up any data or records; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Dependencies. Survival Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum will survive.
(a) Provisioning of the Upgraded SaaS Services.Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Upgraded will make the Upgraded SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this this Agreement during the Term.
(b) Provisioning of the Upgraded Professional ServicesIf Customer elects to receive the Professional Services, and subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, Upgraded will make the Upgraded SaaS Services available to Customer and Permitted Users on the terms and conditions set out in this Agreement and the Professional Services Addendum during the Term.
(c) Restrictons on Use. Customer will not itself, and will not permit others to:
(i) sub-license, sell, rent, lend, lease or distribute the Upgraded SaaS Services or any Intellectual Property Rights therein, or otherwise make the Upgraded SaaS Services available to others other than Permitted Users;
(ii) use the Upgraded SaaS Services to permit timesharing or service bureau use;
(iii) commercially exploit the Upgraded SaaS Services for others;
(iv) use or access the Upgraded SaaS Services:
(A) in violation of any applicable law;
(B) in a manner that threatens the security or functionality of the Upgraded SaaS Services; or
(C) for any purpose or in any manner not expressly permitted in this Agreement;
(v) use the Services to create, collect, transmit, store, use or process any Customer Data:
(A) that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
(B) that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
(C) that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
(vi) Modify the Upgraded SaaS Services;
(vii) reverse engineer, decompile or disassemble the Upgraded SaaS Services;
(viii) remove or obscure any proprietary notices or labels on the Upgraded SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
(ix) access or use the Upgraded SaaS Services for the purpose of building a similar or competitive product or service;
(x) perform any vulnerability, penetration or similar testing of the Upgraded SaaS Services; or
(xi) use the Services for any purpose or in any manner not expressly permitted in this Agreement.
(d) Permitted Purpose.Customer may access and use the Upgraded SaaS Services solely for Customer’s internal business purposes.
(e) Geographic Restrictions.Customer may access and use the Upgraded SaaS Services only in Canada and United States.
(f) Suspension of Access; Scheduled Downtime; Modifications.
Upgraded may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
(i) suspend Customer’s access to or use of the Services or any component thereof:
(A) if Customer or any Permitted User violates any provision of this Agreement;
(B) for scheduled maintenance;
(C) due to a Force Majeure;
(D) to address any emergency security concerns;
(E) if required to do so by a regulatory body or as a result of a change in applicable law; or
(F) for any other reason as provided in this Agreement.
(ii) Modify the Services.
Customer is required to accept all patches, bug fixes and updates made by or on behalf of Upgraded to the Upgraded SaaS Services.
(g) Subcontracting. Upgraded may engage third parties to assist it in providing the Services or any part thereof.
(h) Third-Party Products. The Upgraded SaaS Services may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. If Customer does not agree to abide by the applicable license terms for any such Third-Party Products, then Customer should not install, access, or use such Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third- Party Products provider. Upgraded does not warrant or support Third-Party Products or other third party products, offerings or services, whether or not they are designated by Upgraded as “certified” or otherwise. Upgraded cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Upgraded. Upgraded is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
Fee Structure
The User agrees to pay the Company a fee equivalent to 20% of the performance-based savings and benefits achieved through the services provided.
This includes, but is not limited to:
1. Technology or Vendor Spend Savings: Any cost reductions achieved through optimized technology or vendor spend.
2. Grants and Government Programs: Any funds secured through grants and government programs facilitated by the Company.
3. Labor Savings Due to Automations: Any reductions in labor costs resulting from automation solutions implemented by the Company.
The fee will be calculated based on the documented savings and benefits realized by the User as a direct result of the Company's services.
Payment will be due within 30 days of the issuance of an invoice by the Company.
(a) In order for Customer to access and use the Upgraded SaaS Services, Upgraded will issue one account (the “Customer User Account”) to Customer for use by Customer and all individuals who are employees or contractors of Customer that Customer wishes to have access to and use of the Upgraded SaaS Services (each, a “Permitted User”).
(b) The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Upgraded SaaS Services in compliance with this Agreement. The Customer will ensure that Permitted Users only use the Upgraded SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Upgraded of any actual or suspected unauthorized use of the Upgraded SaaS Services. Upgraded reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
(a) The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Upgraded, and its subcontractors a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to a access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to:
(i) provide the Services;
(ii) improve and enhance the Services and its other offerings; and
(iii) produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). Upgraded may use, process, store, disclose and transmit the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind. As between Upgraded and Customer, all right, title, and interest in Aggregated Data, and all Intellectual Property Rights therein, belong to and are retained solely by Upgraded.
(b) Upgraded or its licensors retain all ownership and Intellectual Property Rights in and to:
(i) the Services;
(ii) anything developed or delivered by or on behalf of Upgraded under this Agreement;
(iii) all other Upgraded’s Confidential Information, including but not limited to, any reports generated from the Upgraded SaaS Services or any Aggregated Data;
(iv) any Modifications to the foregoing (i), (ii) and (iii) (collectively “Upgraded Property”).
(c) Customer grants to Upgraded and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Upgraded SaaS Services, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Upgraded’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Upgraded is not obligated to use any Feedback.
(d) All rights not expressly granted by Upgraded to Customer under this Agreement are reserved.
Upgraded’s collection, use, storage, processing, disclosure and deletion of Personal Information will be treated in accordance with the Upgraded’s privacy statement located at https://helloUpgraded.io/privacy or such other place as may be updated by Upgraded’s from time to time (the “Privacy Policy”). Upgraded’s shall treat all such Personal Information in accordance with privacy and data protection laws applicable to Upgraded.
(a) Fees. If applicable, Customer will pay to Upgraded the fees described at https://helloUpgraded.io/Upgraded-plans (“Fees”). Unless otherwise noted in writing between the Parties
(i) all Fees are identified in United States Dollars;
(ii) Fees are non-cancelable and non-refundable; and
(iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of the Upgraded SaaS Services or Professional Services exceeds the service capacity agreed to between the Parties or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement.
(b) Changes to the Fees. Upgraded reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
(c) Disputed Invoices or Charges. If the Customer believes Upgraded has charged or invoiced the Customer incorrectly, the Customer must contact Upgraded no later than 30 days after having been charged by Upgraded or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
(d) Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. Upgraded reserves the right to suspend the Customer’s access to the Services and any delivery of Professional Services until all due and undisputed amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid. Without limiting Upgraded’s other rights, Upgraded may suspend Customer’s access to or its performance of the Services, if Customer has not paid the applicable Fees within 10 days of the date that such Fees become due.
(e) Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, excise, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement other than taxes based on the net income or profits of Upgraded.
(f) Suspension. Any suspension of the Services by Upgraded pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
(a) Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “ConfidenIal InformaIon” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information:
(i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information;
(ii) information that is publicly available through no wrongful act of the Recipient; or
(iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
(b) Confidentiality Covenants.The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement:
(i) disclose Confidential Information of the Discloser to any person, except to:
(A) in the case of Customer to its own employee having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writings; or
(B) in the case of Upgraded to Upgraded’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; to such other recipients as the Discloser may approve in writing; and to its subcontractors or contractors to perform the Services;
(ii) use Confidential Information of the Discloser; or
(iii) alter or remove from any Confidential Information of the Discloser any proprietary legend.
Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
c) Exceptions to Confidentiality.
Notwithstanding Section 6(b), the Recipient may disclose the Discloser’s Confidential Information:
(i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; or
(ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business.
(d) Return of Confidential Information.
Upon the termination or expiration of this Agreement and all Professional Services Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 10(c) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Upgraded may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
(a) Customer Warranty.
Customer represents and warrants to and covenants with Upgraded that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by and in compliance with applicable laws, including applicable privacy laws, to enable Upgraded to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Upgraded and to or from all applicable third parties.
(b) GENERAL DISCLAIMER.
Upgraded DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY Upgraded TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Upgraded HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, Upgraded EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.(c) NO GUARANTEE OF RESULTS.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE Upgraded SAAS SERVICES ARE PROVIDED FOR INFORMATION PURPOSES ONLY. ANY DECISION MADE AROUND GRANT FUNDING OR NON-DILUTIVE FUNDING IS MADE AT THE DISCRETION OF THE GRANTING ENTITY. Upgraded DOES NOT GUARANTEE THE ACCURACY OF ANY INFORMATION PROVIDED BY THIRD PARTIES. THE SERVICES ARE NOT DESIGNED TO BE THE BASIS OF ANY DECISIONS BEFORE CUSTOMER RECEIVES CONFIRMATION ON FUNDING FROM THE GRANTING ENTITY. CUSTOMER IS RESPONSIBLE FOR ALL GRANT AND FUNDING APPLICATIONS AND SHOULD CONFIRM THE ACCURACY OF ANY SUCH SUBMISSIONS.
8. Customer IndemnityThe Customer will defend, indemnify and hold harmless Upgraded, and its officers, directors, employees and agents (each, a “Upgraded Indemnitee”) from and against any and all Losses incurred by a Upgraded Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Upgraded Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party so2ware, application or service. Customer will fully cooperate with Upgraded in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not sePle any such claim without the prior written consent of Upgraded. Upgraded will promptly notify the Customer in writing of any Action for which Upgraded believes it is entitled to be indemnified pursuant to this Section 8.9. Limitation of LiabilitiesThe Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:a) AMOUNT.IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF Upgraded IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $1,000 OR THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL Upgraded’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.(b) TYPE.TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Upgraded BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.10. Term and Termination(a) Term.This Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term” and with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.(b) Termination and Suspension.(i) In addition and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be suspended by Upgraded at any time at Upgraded’s sole discretion.(ii) Upgraded may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Upgraded believes that Customer or any Permitted User has violated this Agreement; (2) if Upgraded believes the use of Customer Data with the Enterprise Platform is not in Upgraded’s or its users’ best interests; (3) if Upgraded ceases to offer the Services or any component thereof; or (4) as required by applicable laws. Notwithstanding any other Section of this Agreement, Upgraded may, in its discretion, terminate the Agreement at any time by providing at least 30 days advance written notice to Customer.(iii) Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach.(iv) Either party may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to the other party if the non-breaching party becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to it for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.(c) Effect of Termination.Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement:(i) Customer will immediately lose all access to the Services;(ii) Each party will return or destroy the other party’s Confidential Information;(iii) In the event the Agreement is terminated by Customer, Customer will not be entitled to any refund or reimbursement of the Fees.Notwithstanding the foregoing, Upgraded may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.(d) Survival.The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(d) (Survival), and Section 11 (General Provisions).11. General Provisions(a) Notices.Notices sent to either Party will be effective when delivered in writing and in person or by email, one day a2er being sent by overnight courier, or five days a2er being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Upgraded, to the following Upgraded’s address and email contact:The Upgraded Teamhello@helloUpgraded.ioand (ii) if to Customer, to the current mailing or email address that Upgraded has on file with respect to Customer. Upgraded may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Upgraded current at all times during the Term.(b) Assignment.Customer may not assign this Agreement to any third party without Upgraded’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Upgraded may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.(c) Governing Law and Attornment.This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably aPorn to the exclusive personal jurisdiction and venue of the courts sitng therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Upgraded from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.(d) Export Restrictions.Customer will comply with all export laws and regulations that may apply to its access to or use of the Upgraded SaaS Services. Upgraded makes no representation or warranty that the Upgraded SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.(e) Construction.Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.(f) Force Majeure.Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.(g) Severability.Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.(h) Waiver.A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.(i) Independent Contractors.Upgraded’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.(j) Entire Agreement.This Agreement constitutes the entire agreement between the Parties with respect to the subject maPer of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.(k) Amendments.No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, Upgraded MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY Upgraded, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).(l) Customer Lists.Upgraded may identify the Customer by name and logo as a Upgraded customer on Upgraded’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.(m) English Language.It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y raPachent soient rédigés en anglais.12. Definitions(a) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Upgraded SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Upgraded Property.(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or herea2er in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.(c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, sePlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.(e) “ModificaIons” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.(f) “Personal InformaIon” means information about an identifiable individual provided by Customer under this Agreement.(g) “Upgraded SaaS Services” means: (i) the services through which Upgraded hosts and makes available the Upgraded SaaS Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Upgraded SaaS Services” does not include Professional Services.(h) “Services” means the Upgraded SaaS Services and the Professional Services, collectively, and any part thereof.(i) “Professional Services” means the consulting, training and other professional services described in the Professional Services Order Form. The term “Professional Services” does not include Upgraded SaaS Services.(j) “Professional Services Order Form” means an order form that references this Agreement and Professional Services to be provided by Upgraded and that is executed by both Parties or otherwise accepted by Customer.(k) “Sign Up Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.(l) “Website” means any websites used by Upgraded to provide the Upgraded SaaS Services, including the websites located at https://helloUpgraded.io/Professional Services AddendumTHIS PROFESSIONAL SERVICES ADDENDUM (“Professional Services Addendum”) is entered into the earlier of the date the Customer uses the Professional Services or the date Customer agrees to be bound by this Professional Services Addendum, by and between deepND Inc. (“Upgraded”) and Customer, pursuant to the Upgraded Terms of Use (the “Agreement”).1. Effect on this Addendum.This Professional Services Addendum is part of, and subject to and governed by the terms and conditions of, the Agreement, as amended from time to time. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement.2. Definitions(a) “Application” means an application utilized by the Customer can apply for a Funding Program for which Upgraded has provided the Professional Services;(b) “Awarded Funds” means any Funding Program in which of which Customer has received funds following a submitted Application;(c) “Funder” means the organization, agency, or other entity making the Funding Program available; and(d) “Funding Program” means a sum of money given or made available by a government or other organization for a particular purpose, including grants and other non-dilutive funding.(e) “Request Form” means the request form completed by the Customer requesting specific assistance with an Application in the form provided by Upgraded to Customer. 3. Services(a) Upgraded will use commercially reasonable efforts to deliver the following professional services (the “Professional Services”):(i) Review information provided by Customer to assist in determining whether the Customer is eligible for available Funding Programs, and reporting to Customer on specific Funding Programs;(ii) Gather the information required to complete the Application, including engaging in iterative conversations with the Customer;(iii) Assist the Customer in preparing the Application;(iv) Preparing and utilizing an email account for the purpose of the Application (the “Customer Application Email”) and provide user access to Customer;(v) Assist in responding to any follow-up questions by the Funder following the submission of the Application; and(vi) The other services and obligations described in each Request Form. (b) All Professional Services will be performed remotely.(c) Upgraded will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Upgraded’s resources may include employees of Upgraded or subcontractors.(d) Each Grant Request will be in a form substantially similar to the form of the Grant Request provided by Upgraded. Each Grant Request will be duly executed as an amendment to this Agreement, and each Grant Request will be deemed to incorporate by reference the provisions of this Agreement (excluding the provision of other Grant Requests) unless the applicable Grant Request expressly provides otherwise. 4. Professional Services Fees(a) In consideration for the Professional Services performed or provided to Customer under this Professional Services Addendum, Customer will pay to Upgraded 20% of the Awarded Funds on a pre-tax basis (the “Professional Services Fee”). In the event the Request Form does not set out such fees, the Professional Services Fee will be calculated as 20% of the Awarded Funds.(b) Success-Based Fees.(i) In the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, and in the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee.Notwithstanding the foregoing, in the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, Customer will not owe any Professional Services Fees to Upgraded if Customer is not approved for the Funding Program indicated in the Grant Request. (ii) Notwithstanding the foregoing, Customer agrees that the Professional Services Fee will equally be payable to Upgraded in the event Customer receives Awarded Funds from Funder for a different Funding Program or in a subsequent Funding Program award cycle using the Application. (iii) Upon the earlier of notification by the Funder or the Customer that Customer has been approved for a Funding Program, Upgraded will prepare and provide to Customer an invoice for the Professional Services Fee.(c) Project-Based Fees. In the event the Professional Services Fee is a Project-Based Fee as indicated on the Grant Request, Customer will owe the Professional Services Fees to Upgraded regardless of whether the Application is successful. (d) Hybrid Fees.(i) In the event the Professional Services Fee is a Hybrid Fee as indicated on the Grant Request, Customer will owe the Deposit to Upgraded regardless of whether the Application is successful. It is non-refundable. Customer will owe the Success-Based Fee as detailed in Section 4B.
(e) All payments for the Professional Services Fee will be due and payable within 30 days of Upgraded’s provision of the invoice to Customer.
(f) In the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee. (f) Any suspension of the Professional Services by Upgraded pursuant to the Agreement will not excuse Customer from its obligation to make payments for the Professional Services Fees. 5. Customer Dependencies(a) Customer will cooperate with Upgraded in the performance of the Professional Services and in the development any Application, by completing all customer dependencies listed in the Request Form and the following activities (collectively the “Customer Dependencies”):(i) Collaborating with Upgraded to provide all information reasonably required in order for Upgraded to provide the Professional Services;(ii) Reviewing the Funding Program to confirm Customer’s eligibility;(iii) Providing accurate and complete information to Upgraded, including full disclosure of any information reasonably relevant to the Application;(iv) Finalizing and reviewing the Application to ensure accuracy and completion;(v) Complying with all terms of the Application and the Funding Program, including hiring and recruiting eligible employees if necessary;(vi) Notifying Upgraded immediately upon being approved for any Funding Program following an Application;(vii) Monitoring the Customer Application Email on an ongoing basis; and(viii) Maintaining all accounting and records. (b) Customer acknowledges and agrees that if it has not performed the Customer Dependencies including but not limited to providing provided all necessary cooperation or information to Upgraded, or if Upgraded is otherwise denied or delayed access or information by Customer, then Upgraded will be excused, without liability, from performing any further Professional Services. Such failure to perform the Professional Services resulting from Customer’s failures will not relieve Customer from any payment obligations to Upgraded.
(c) Customer acknowledges and agrees that the ultimate responsibility for the Application is with the Customer.
(d) Upon receiving any confirmation that an Application has been successful, Customer will immediately provide Upgraded all relevant details of the Funding Program, including but not limited to the amount, duration, any further requirements, and any further information required by Upgraded to comply with its obligations. 6. No Assignment or Transfer of Intellectual PropertyWithout limiting Section 3 of the Agreement, Upgraded retains all ownership and Intellectual Property Rights in and to: (a) the Professional Services; (b) anything developed or delivered by or on behalf of Upgraded under this Professional Services Addendum; and (c) any Modifications or enhancements to (a) or (b). All rights not expressly granted by Upgraded to Customer under this Professional Services Addendum are reserved. 7. Change Requests and Termination.(a) The Parties may agree to changes in the scope of the Professional Services by mutual agreement in writing.(b) Either Party may terminate any Request Form at any time during the Request Form Term upon written notice to the other Party. In the event that Customer terminates the Request Form, Customer remains responsible for the Professional Services Fees, and will compensate Upgraded for all work completed until the date of termination at Upgraded’s then-current rates. In the event that Upgraded terminates the Request Form during the Request Form Term, Customer will not be liable to Upgraded for any Professional Services Fees incurred by Upgraded related to such Request Form.8. Limitation of Liability.NOTWITHSTANDING SECTION 9 OF THE AGREEMENT, NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC REQUEST FORM OUT OF WHICH THE LIABILITY AROSE. Upgraded’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE AGREEMENT.8. DisclaimersWithout limiting Section 9 of the Agreement: (a) Upgraded will have no liability for loss or recovery of data or records or for Customer’s failure to properly back-up any data or records; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Dependencies. Survival Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum will survive.
The Customer will defend, indemnify and hold harmless Upgraded, and its officers, directors, employees and agents (each, a “Upgraded Indemnitee”) from and against any and all Losses incurred by a Upgraded Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Upgraded Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; (iii) unauthorized use of the Services by the Customer or any Permitted User; or (iv) use of the Services (or any part thereof) by Customer or any Permitted User in combination with any third party so2ware, application or service. Customer will fully cooperate with Upgraded in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not sePle any such claim without the prior written consent of Upgraded. Upgraded will promptly notify the Customer in writing of any Action for which Upgraded believes it is entitled to be indemnified pursuant to this Section 8.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
a) AMOUNT.
IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF Upgraded IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE GREATER OF $1,000 OR THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL Upgraded’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) TYPE.
TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL Upgraded BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
10. Term and Termination(a) Term.This Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term” and with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.(b) Termination and Suspension.(i) In addition and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be suspended by Upgraded at any time at Upgraded’s sole discretion.(ii) Upgraded may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Upgraded believes that Customer or any Permitted User has violated this Agreement; (2) if Upgraded believes the use of Customer Data with the Enterprise Platform is not in Upgraded’s or its users’ best interests; (3) if Upgraded ceases to offer the Services or any component thereof; or (4) as required by applicable laws. Notwithstanding any other Section of this Agreement, Upgraded may, in its discretion, terminate the Agreement at any time by providing at least 30 days advance written notice to Customer.(iii) Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach.(iv) Either party may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to the other party if the non-breaching party becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to it for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.(c) Effect of Termination.Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement:(i) Customer will immediately lose all access to the Services;(ii) Each party will return or destroy the other party’s Confidential Information;(iii) In the event the Agreement is terminated by Customer, Customer will not be entitled to any refund or reimbursement of the Fees.Notwithstanding the foregoing, Upgraded may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.(d) Survival.The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(d) (Survival), and Section 11 (General Provisions).11. General Provisions(a) Notices.Notices sent to either Party will be effective when delivered in writing and in person or by email, one day a2er being sent by overnight courier, or five days a2er being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Upgraded, to the following Upgraded’s address and email contact:The Upgraded Teamhello@helloUpgraded.ioand (ii) if to Customer, to the current mailing or email address that Upgraded has on file with respect to Customer. Upgraded may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Upgraded current at all times during the Term.(b) Assignment.Customer may not assign this Agreement to any third party without Upgraded’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Upgraded may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.(c) Governing Law and Attornment.This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably aPorn to the exclusive personal jurisdiction and venue of the courts sitng therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Upgraded from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.(d) Export Restrictions.Customer will comply with all export laws and regulations that may apply to its access to or use of the Upgraded SaaS Services. Upgraded makes no representation or warranty that the Upgraded SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.(e) Construction.Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.(f) Force Majeure.Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.(g) Severability.Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.(h) Waiver.A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.(i) Independent Contractors.Upgraded’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.(j) Entire Agreement.This Agreement constitutes the entire agreement between the Parties with respect to the subject maPer of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.(k) Amendments.No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, Upgraded MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY Upgraded, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).(l) Customer Lists.Upgraded may identify the Customer by name and logo as a Upgraded customer on Upgraded’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.(m) English Language.It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y raPachent soient rédigés en anglais.12. Definitions(a) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Upgraded SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Upgraded Property.(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or herea2er in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.(c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, sePlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.(e) “ModificaIons” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.(f) “Personal InformaIon” means information about an identifiable individual provided by Customer under this Agreement.(g) “Upgraded SaaS Services” means: (i) the services through which Upgraded hosts and makes available the Upgraded SaaS Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Upgraded SaaS Services” does not include Professional Services.(h) “Services” means the Upgraded SaaS Services and the Professional Services, collectively, and any part thereof.(i) “Professional Services” means the consulting, training and other professional services described in the Professional Services Order Form. The term “Professional Services” does not include Upgraded SaaS Services.(j) “Professional Services Order Form” means an order form that references this Agreement and Professional Services to be provided by Upgraded and that is executed by both Parties or otherwise accepted by Customer.(k) “Sign Up Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.(l) “Website” means any websites used by Upgraded to provide the Upgraded SaaS Services, including the websites located at https://helloUpgraded.io/Professional Services AddendumTHIS PROFESSIONAL SERVICES ADDENDUM (“Professional Services Addendum”) is entered into the earlier of the date the Customer uses the Professional Services or the date Customer agrees to be bound by this Professional Services Addendum, by and between deepND Inc. (“Upgraded”) and Customer, pursuant to the Upgraded Terms of Use (the “Agreement”).1. Effect on this Addendum.This Professional Services Addendum is part of, and subject to and governed by the terms and conditions of, the Agreement, as amended from time to time. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement.2. Definitions(a) “Application” means an application utilized by the Customer can apply for a Funding Program for which Upgraded has provided the Professional Services;(b) “Awarded Funds” means any Funding Program in which of which Customer has received funds following a submitted Application;(c) “Funder” means the organization, agency, or other entity making the Funding Program available; and(d) “Funding Program” means a sum of money given or made available by a government or other organization for a particular purpose, including grants and other non-dilutive funding.(e) “Request Form” means the request form completed by the Customer requesting specific assistance with an Application in the form provided by Upgraded to Customer. 3. Services(a) Upgraded will use commercially reasonable efforts to deliver the following professional services (the “Professional Services”):(i) Review information provided by Customer to assist in determining whether the Customer is eligible for available Funding Programs, and reporting to Customer on specific Funding Programs;(ii) Gather the information required to complete the Application, including engaging in iterative conversations with the Customer;(iii) Assist the Customer in preparing the Application;(iv) Preparing and utilizing an email account for the purpose of the Application (the “Customer Application Email”) and provide user access to Customer;(v) Assist in responding to any follow-up questions by the Funder following the submission of the Application; and(vi) The other services and obligations described in each Request Form. (b) All Professional Services will be performed remotely.(c) Upgraded will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Upgraded’s resources may include employees of Upgraded or subcontractors.(d) Each Grant Request will be in a form substantially similar to the form of the Grant Request provided by Upgraded. Each Grant Request will be duly executed as an amendment to this Agreement, and each Grant Request will be deemed to incorporate by reference the provisions of this Agreement (excluding the provision of other Grant Requests) unless the applicable Grant Request expressly provides otherwise. 4. Professional Services Fees(a) In consideration for the Professional Services performed or provided to Customer under this Professional Services Addendum, Customer will pay to Upgraded 20% of the Awarded Funds on a pre-tax basis (the “Professional Services Fee”). In the event the Request Form does not set out such fees, the Professional Services Fee will be calculated as 20% of the Awarded Funds.(b) Success-Based Fees.(i) In the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, and in the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee.Notwithstanding the foregoing, in the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, Customer will not owe any Professional Services Fees to Upgraded if Customer is not approved for the Funding Program indicated in the Grant Request. (ii) Notwithstanding the foregoing, Customer agrees that the Professional Services Fee will equally be payable to Upgraded in the event Customer receives Awarded Funds from Funder for a different Funding Program or in a subsequent Funding Program award cycle using the Application. (iii) Upon the earlier of notification by the Funder or the Customer that Customer has been approved for a Funding Program, Upgraded will prepare and provide to Customer an invoice for the Professional Services Fee.(c) Project-Based Fees. In the event the Professional Services Fee is a Project-Based Fee as indicated on the Grant Request, Customer will owe the Professional Services Fees to Upgraded regardless of whether the Application is successful. (d) Hybrid Fees.(i) In the event the Professional Services Fee is a Hybrid Fee as indicated on the Grant Request, Customer will owe the Deposit to Upgraded regardless of whether the Application is successful. It is non-refundable. Customer will owe the Success-Based Fee as detailed in Section 4B.
(e) All payments for the Professional Services Fee will be due and payable within 30 days of Upgraded’s provision of the invoice to Customer.
(f) In the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee. (f) Any suspension of the Professional Services by Upgraded pursuant to the Agreement will not excuse Customer from its obligation to make payments for the Professional Services Fees. 5. Customer Dependencies(a) Customer will cooperate with Upgraded in the performance of the Professional Services and in the development any Application, by completing all customer dependencies listed in the Request Form and the following activities (collectively the “Customer Dependencies”):(i) Collaborating with Upgraded to provide all information reasonably required in order for Upgraded to provide the Professional Services;(ii) Reviewing the Funding Program to confirm Customer’s eligibility;(iii) Providing accurate and complete information to Upgraded, including full disclosure of any information reasonably relevant to the Application;(iv) Finalizing and reviewing the Application to ensure accuracy and completion;(v) Complying with all terms of the Application and the Funding Program, including hiring and recruiting eligible employees if necessary;(vi) Notifying Upgraded immediately upon being approved for any Funding Program following an Application;(vii) Monitoring the Customer Application Email on an ongoing basis; and(viii) Maintaining all accounting and records. (b) Customer acknowledges and agrees that if it has not performed the Customer Dependencies including but not limited to providing provided all necessary cooperation or information to Upgraded, or if Upgraded is otherwise denied or delayed access or information by Customer, then Upgraded will be excused, without liability, from performing any further Professional Services. Such failure to perform the Professional Services resulting from Customer’s failures will not relieve Customer from any payment obligations to Upgraded.
(c) Customer acknowledges and agrees that the ultimate responsibility for the Application is with the Customer.
(d) Upon receiving any confirmation that an Application has been successful, Customer will immediately provide Upgraded all relevant details of the Funding Program, including but not limited to the amount, duration, any further requirements, and any further information required by Upgraded to comply with its obligations. 6. No Assignment or Transfer of Intellectual PropertyWithout limiting Section 3 of the Agreement, Upgraded retains all ownership and Intellectual Property Rights in and to: (a) the Professional Services; (b) anything developed or delivered by or on behalf of Upgraded under this Professional Services Addendum; and (c) any Modifications or enhancements to (a) or (b). All rights not expressly granted by Upgraded to Customer under this Professional Services Addendum are reserved. 7. Change Requests and Termination.(a) The Parties may agree to changes in the scope of the Professional Services by mutual agreement in writing.(b) Either Party may terminate any Request Form at any time during the Request Form Term upon written notice to the other Party. In the event that Customer terminates the Request Form, Customer remains responsible for the Professional Services Fees, and will compensate Upgraded for all work completed until the date of termination at Upgraded’s then-current rates. In the event that Upgraded terminates the Request Form during the Request Form Term, Customer will not be liable to Upgraded for any Professional Services Fees incurred by Upgraded related to such Request Form.8. Limitation of Liability.NOTWITHSTANDING SECTION 9 OF THE AGREEMENT, NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC REQUEST FORM OUT OF WHICH THE LIABILITY AROSE. Upgraded’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE AGREEMENT.8. DisclaimersWithout limiting Section 9 of the Agreement: (a) Upgraded will have no liability for loss or recovery of data or records or for Customer’s failure to properly back-up any data or records; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Dependencies. Survival Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum will survive.
(a) Term.
This Agreement will commence on the Effective Date and continue to be in effect for a period of 1 year (the “Initial Term”). The Term will automatically renew for successive periods of 1 year (each a “Renewal Term” and with the Initial Term, the “Term”), unless either party provides the other party with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.
(b) Termination and Suspension.
(i) In addition and not withstanding anything to the contrary in this Agreement, Customer’s and all Permitted Users’ access to the Services may be suspended by Upgraded at any time at Upgraded’s sole discretion.
(ii) Upgraded may immediately terminate Customer’s right to use the Services or this Agreement: (1) if Upgraded believes that Customer or any Permitted User has violated this Agreement; (2) if Upgraded believes the use of Customer Data with the Enterprise Platform is not in Upgraded’s or its users’ best interests; (3) if Upgraded ceases to offer the Services or any component thereof; or (4) as required by applicable laws. Notwithstanding any other Section of this Agreement, Upgraded may, in its discretion, terminate the Agreement at any time by providing at least 30 days advance written notice to Customer.
(iii) Either party may terminate this Agreement if the other party commits a material breach of this Agreement and fails to correct such breach within 30 calendar days after receipt of notice of such breach.
(iv) Either party may in its discretion terminate this Agreement effective immediately upon delivery of notice of termination to the other party if the non-breaching party becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to it for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
(c) Effect of Termination.Unless otherwise specified in this Agreement, upon any expiration or termination of this Agreement:
(i) Customer will immediately lose all access to the Services;
(ii) Each party will return or destroy the other party’s Confidential Information;
(iii) In the event the Agreement is terminated by Customer, Customer will not be entitled to any refund or reimbursement of the Fees.Notwithstanding the foregoing, Upgraded may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.
(d) Survival.
The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(d) (Survival), and Section 11 (General Provisions).
11. General Provisions(a) Notices.Notices sent to either Party will be effective when delivered in writing and in person or by email, one day a2er being sent by overnight courier, or five days a2er being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Upgraded, to the following Upgraded’s address and email contact:The Upgraded Teamhello@helloUpgraded.ioand (ii) if to Customer, to the current mailing or email address that Upgraded has on file with respect to Customer. Upgraded may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Upgraded current at all times during the Term.(b) Assignment.Customer may not assign this Agreement to any third party without Upgraded’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Upgraded may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.(c) Governing Law and Attornment.This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably aPorn to the exclusive personal jurisdiction and venue of the courts sitng therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Upgraded from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.(d) Export Restrictions.Customer will comply with all export laws and regulations that may apply to its access to or use of the Upgraded SaaS Services. Upgraded makes no representation or warranty that the Upgraded SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.(e) Construction.Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.(f) Force Majeure.Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.(g) Severability.Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.(h) Waiver.A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.(i) Independent Contractors.Upgraded’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.(j) Entire Agreement.This Agreement constitutes the entire agreement between the Parties with respect to the subject maPer of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.(k) Amendments.No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, Upgraded MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY Upgraded, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).(l) Customer Lists.Upgraded may identify the Customer by name and logo as a Upgraded customer on Upgraded’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.(m) English Language.It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y raPachent soient rédigés en anglais.12. Definitions(a) “Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Upgraded SaaS Services, including but not limited to Personal Information, excluding Aggregated Data and any other Upgraded Property.(b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or herea2er in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.(c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement.(d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, sePlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.(e) “ModificaIons” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.(f) “Personal InformaIon” means information about an identifiable individual provided by Customer under this Agreement.(g) “Upgraded SaaS Services” means: (i) the services through which Upgraded hosts and makes available the Upgraded SaaS Services as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Upgraded SaaS Services” does not include Professional Services.(h) “Services” means the Upgraded SaaS Services and the Professional Services, collectively, and any part thereof.(i) “Professional Services” means the consulting, training and other professional services described in the Professional Services Order Form. The term “Professional Services” does not include Upgraded SaaS Services.(j) “Professional Services Order Form” means an order form that references this Agreement and Professional Services to be provided by Upgraded and that is executed by both Parties or otherwise accepted by Customer.(k) “Sign Up Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer.(l) “Website” means any websites used by Upgraded to provide the Upgraded SaaS Services, including the websites located at https://helloUpgraded.io/Professional Services AddendumTHIS PROFESSIONAL SERVICES ADDENDUM (“Professional Services Addendum”) is entered into the earlier of the date the Customer uses the Professional Services or the date Customer agrees to be bound by this Professional Services Addendum, by and between deepND Inc. (“Upgraded”) and Customer, pursuant to the Upgraded Terms of Use (the “Agreement”).1. Effect on this Addendum.This Professional Services Addendum is part of, and subject to and governed by the terms and conditions of, the Agreement, as amended from time to time. Capitalized terms used but not defined in this Professional Services Addendum have the meanings set forth elsewhere in the Agreement.2. Definitions(a) “Application” means an application utilized by the Customer can apply for a Funding Program for which Upgraded has provided the Professional Services;(b) “Awarded Funds” means any Funding Program in which of which Customer has received funds following a submitted Application;(c) “Funder” means the organization, agency, or other entity making the Funding Program available; and(d) “Funding Program” means a sum of money given or made available by a government or other organization for a particular purpose, including grants and other non-dilutive funding.(e) “Request Form” means the request form completed by the Customer requesting specific assistance with an Application in the form provided by Upgraded to Customer. 3. Services(a) Upgraded will use commercially reasonable efforts to deliver the following professional services (the “Professional Services”):(i) Review information provided by Customer to assist in determining whether the Customer is eligible for available Funding Programs, and reporting to Customer on specific Funding Programs;(ii) Gather the information required to complete the Application, including engaging in iterative conversations with the Customer;(iii) Assist the Customer in preparing the Application;(iv) Preparing and utilizing an email account for the purpose of the Application (the “Customer Application Email”) and provide user access to Customer;(v) Assist in responding to any follow-up questions by the Funder following the submission of the Application; and(vi) The other services and obligations described in each Request Form. (b) All Professional Services will be performed remotely.(c) Upgraded will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Upgraded’s resources may include employees of Upgraded or subcontractors.(d) Each Grant Request will be in a form substantially similar to the form of the Grant Request provided by Upgraded. Each Grant Request will be duly executed as an amendment to this Agreement, and each Grant Request will be deemed to incorporate by reference the provisions of this Agreement (excluding the provision of other Grant Requests) unless the applicable Grant Request expressly provides otherwise. 4. Professional Services Fees(a) In consideration for the Professional Services performed or provided to Customer under this Professional Services Addendum, Customer will pay to Upgraded 20% of the Awarded Funds on a pre-tax basis (the “Professional Services Fee”). In the event the Request Form does not set out such fees, the Professional Services Fee will be calculated as 20% of the Awarded Funds.(b) Success-Based Fees.(i) In the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, and in the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee.Notwithstanding the foregoing, in the event the Professional Services Fee is a Success-Based Fee as indicated on the Grant Request, Customer will not owe any Professional Services Fees to Upgraded if Customer is not approved for the Funding Program indicated in the Grant Request. (ii) Notwithstanding the foregoing, Customer agrees that the Professional Services Fee will equally be payable to Upgraded in the event Customer receives Awarded Funds from Funder for a different Funding Program or in a subsequent Funding Program award cycle using the Application. (iii) Upon the earlier of notification by the Funder or the Customer that Customer has been approved for a Funding Program, Upgraded will prepare and provide to Customer an invoice for the Professional Services Fee.(c) Project-Based Fees. In the event the Professional Services Fee is a Project-Based Fee as indicated on the Grant Request, Customer will owe the Professional Services Fees to Upgraded regardless of whether the Application is successful. (d) Hybrid Fees.(i) In the event the Professional Services Fee is a Hybrid Fee as indicated on the Grant Request, Customer will owe the Deposit to Upgraded regardless of whether the Application is successful. It is non-refundable. Customer will owe the Success-Based Fee as detailed in Section 4B.
(e) All payments for the Professional Services Fee will be due and payable within 30 days of Upgraded’s provision of the invoice to Customer.
(f) In the event that Customer determines not to submit the Application at any time, Upgraded will invoice Customer on an hourly basis for all work completed until the date of termination at Upgraded’s then-current rates, provided that such invoice will not exceed the proposed Professional Services Fee. (f) Any suspension of the Professional Services by Upgraded pursuant to the Agreement will not excuse Customer from its obligation to make payments for the Professional Services Fees. 5. Customer Dependencies(a) Customer will cooperate with Upgraded in the performance of the Professional Services and in the development any Application, by completing all customer dependencies listed in the Request Form and the following activities (collectively the “Customer Dependencies”):(i) Collaborating with Upgraded to provide all information reasonably required in order for Upgraded to provide the Professional Services;(ii) Reviewing the Funding Program to confirm Customer’s eligibility;(iii) Providing accurate and complete information to Upgraded, including full disclosure of any information reasonably relevant to the Application;(iv) Finalizing and reviewing the Application to ensure accuracy and completion;(v) Complying with all terms of the Application and the Funding Program, including hiring and recruiting eligible employees if necessary;(vi) Notifying Upgraded immediately upon being approved for any Funding Program following an Application;(vii) Monitoring the Customer Application Email on an ongoing basis; and(viii) Maintaining all accounting and records. (b) Customer acknowledges and agrees that if it has not performed the Customer Dependencies including but not limited to providing provided all necessary cooperation or information to Upgraded, or if Upgraded is otherwise denied or delayed access or information by Customer, then Upgraded will be excused, without liability, from performing any further Professional Services. Such failure to perform the Professional Services resulting from Customer’s failures will not relieve Customer from any payment obligations to Upgraded.
(c) Customer acknowledges and agrees that the ultimate responsibility for the Application is with the Customer.
(d) Upon receiving any confirmation that an Application has been successful, Customer will immediately provide Upgraded all relevant details of the Funding Program, including but not limited to the amount, duration, any further requirements, and any further information required by Upgraded to comply with its obligations. 6. No Assignment or Transfer of Intellectual PropertyWithout limiting Section 3 of the Agreement, Upgraded retains all ownership and Intellectual Property Rights in and to: (a) the Professional Services; (b) anything developed or delivered by or on behalf of Upgraded under this Professional Services Addendum; and (c) any Modifications or enhancements to (a) or (b). All rights not expressly granted by Upgraded to Customer under this Professional Services Addendum are reserved. 7. Change Requests and Termination.(a) The Parties may agree to changes in the scope of the Professional Services by mutual agreement in writing.(b) Either Party may terminate any Request Form at any time during the Request Form Term upon written notice to the other Party. In the event that Customer terminates the Request Form, Customer remains responsible for the Professional Services Fees, and will compensate Upgraded for all work completed until the date of termination at Upgraded’s then-current rates. In the event that Upgraded terminates the Request Form during the Request Form Term, Customer will not be liable to Upgraded for any Professional Services Fees incurred by Upgraded related to such Request Form.8. Limitation of Liability.NOTWITHSTANDING SECTION 9 OF THE AGREEMENT, NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS PROFESSIONAL SERVICES ADDENDUM, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER UNDER THE SPECIFIC REQUEST FORM OUT OF WHICH THE LIABILITY AROSE. Upgraded’S LIABILITY WILL BE FURTHER LIMITED AS PROVIDED IN THE AGREEMENT.8. DisclaimersWithout limiting Section 9 of the Agreement: (a) Upgraded will have no liability for loss or recovery of data or records or for Customer’s failure to properly back-up any data or records; and (b) Customer will be responsible for, and assumes the risk of, any problems resulting from the content, accuracy, completeness and consistency of Customer Dependencies. Survival Upon any termination or expiration of this Professional Services Addendum, provisions contained in this Professional Services Addendum that by their nature and context are intended to survive completion of performance, expiration, termination, or cancellation of this Professional Services Addendum will survive.
Notices sent to either Party will be effective when delivered in writing and in person or by email, one day a2er being sent by overnight courier, or five days a2er being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Upgraded, to the following Upgraded’s address and email contact:The Upgraded Teamhello@helloUpgraded.ioand (ii) if to Customer, to the current mailing or email address that Upgraded has on file with respect to Customer. Upgraded may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Upgraded current at all times during the Term.
(b) Assignment.
Customer may not assign this Agreement to any third party without Upgraded’s prior written consent. Any purported assignment or delegation by Customer in violation of this Section will be null and void. Upgraded may assign this Agreement or any rights under this Agreement to any third party without Customer’s consent. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
(c) Governing Law and Attornment.
This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the British Columbia and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Vancouver, British Columbia, Canada, and irrevocably aPorn to the exclusive personal jurisdiction and venue of the courts sitng therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Upgraded from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.
(d) Export Restrictions.
Customer will comply with all export laws and regulations that may apply to its access to or use of the Upgraded SaaS Services. Upgraded makes no representation or warranty that the Upgraded SaaS Services may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained.
(e) Construction.
Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.
(f) Force Majeure.
Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 5, 6, or 8.
(g) Severability.
Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(h) Waiver.
A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(i) Independent Contractors.
Upgraded’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(j) Entire Agreement.
This Agreement constitutes the entire agreement between the Parties with respect to the subject maPer of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.
(k) Amendments.
No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. NOTWITHSTANDING THE PRECEDING SENTENCE, Upgraded MAY UNILATERALLY AMEND THIS AGREEMENT, IN WHOLE OR IN PART (EACH, AN “AMENDMENT”), BY GIVING CUSTOMER PRIOR NOTICE OF SUCH AMENDMENT OR POSTING NOTICE OF SUCH AMENDMENT ON THE WEBSITE. UNLESS OTHERWISE INDICATED BY Upgraded, ANY SUCH AMENDMENT WILL BECOME EFFECTIVE AS OF THE DATE THE NOTICE OF SUCH AMENDMENT IS PROVIDED TO CUSTOMER OR IS POSTED ON THE WEBSITE (WHICHEVER IS THE EARLIER).
(l) Customer Lists.
Upgraded may identify the Customer by name and logo as a Upgraded customer on Upgraded’s website and on other promotional materials. Any goodwill arising from the use of the Customer’s name and logo will inure to the benefit of the Customer.
(m) English Language.
It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y raPachent soient rédigés en anglais.
