“Affiliate(s)” means any legal entity that controls, is controlled by, or is under common control with a Party. For the purpose hereof, “Control” means ownership of more than a 50% interest of voting securities in an entity or the power to direct the management and policies of an entity.

“Defect” shall mean a failure in program logic or functions of the Flowfit Solution which prevents it from operating in all material respects as described in the Documentation.

"Customer Equipment" means the Customer's information technology infrastructure, including computers, software, hardware, databases, electronic systems and networks, whether operated directly by the Customer or through the use of third-party services.

“Data Processing Agreement” means the Data Processing Agreement available at Flowfit DPA

“Documentation” shall mean printed and/or electronic materials relating to the Flowfit Solution (excluding any source code of programming documentation), including users’ manuals, data sheets, cue cards and technical manuals provided by XTM Flowfit to the Customer, as it may be modified from time to time by XTM Flowfit.

“Effective Date” means the date set forth in the Proposal or the date on which the Customer accesses the Flowfit Solution, whichever occurs first.

“Flowfit Solution” means the FlowFit translation management solution offered by XTM Flowfit for the management of linguistic projects, as well as all services (including hosting), software, equipment and technology related thereto.

“Intellectual Property Rights” means any and all copyright, rights in inventions, patents, know-how, trade secrets, trademarks and trade names, service marks, design rights, rights in get-up, database rights and rights in data, semiconductor chip topography rights, utility models, domain names and all similar rights and, in each case:

(a) whether registered or not;

(b) including any applications to protect or register such rights;

(c) including all renewals and extensions of such rights or applications; (d) whether vested, contingent or future; and

(e) wherever existing.

“Licensed Materials” shall mean collectively the Flowfit Solution and the Documentation.

“Non-Supplier Materials” shall mean all services, data, information, content, intellectual property rights, websites, software and other materials controlled or owned by or on behalf of a third party (excluding Affiliates) the use of which is subject to a separate agreement or licence between the Customer and the relevant third party (including such Non-Supplier Materials which may be linked to, interact with or used by the Services or Licensed Materials) and all other materials expressly identified as Non-Supplier Materials in the Agreement.

“Open Source” shall mean any software subject to a version of the General Public Licence, together with any other ‘open source’ software falling within the Open Source Definition issued by the Open Source Initiative (www.opensource.org/docs/osd) at the date of this Agreement and any ‘free software’ as defined by the Free Software Foundation (www.gnu.org/philosophy/free-sw.html) at the date of the Agreement.

“Personal Information" means any information that relates to an individual person and identifies or can be used to identify, locate, or contact that individual alone or when combined with other personal or identifying information.

“Privacy Laws” means any law, rule, regulation, decree, statute, or other enactment, applicable to a Party relating to data security, data protection and/or privacy, including, without limitation:

(a) the Personal Information Protection and Electronic Documents Act (Canada),

(b) Regulation 2016/679 of the European Parliament and of the Council on the General Data Protection Regulation;

(c) the United Kingdom General Data Protection Regulation; and

(d) any other federal, provincial or state privacy legislation now in force or that may in the future come into force applicable to a Party and as it may be amended from time to time.

“Proposal” refers to the final version of the proposal or order form describing the Flowfit Solution and Services prepared by XTM Flowfit and accepted by the Customer, which forms an integral part of this Agreement.

“Services” means the services provided by XTM Flowfit to enable and optimize the Customer’s use of the Flowfit Solution, as described in the Proposal, in this Agreement or otherwise agreed between the Parties.

“Updates” means modifications to the Flowfit Solution to fix or by-pass known Defects or to make minor changes to its functionality, including patches and bug fixes, released by XTM Flowfit from time to time at its discretion, to the exclusions of Upgrades.

“Upgrades” means new modules or versions which add material functional capabilities or new features to the Flowfit Solution.

“User(s)” shall mean the employees, subcontractors or other representatives of the Customer who are authorized to access and use the Flowfit Solution.

Additional terms and expressions used in a particular context are defined elsewhere in this Agreement and shall have the meaning expressly assigned to them.

2. Scope

2.1. Subject to the fulfilment of all its obligations hereunder, XTM Flowfit hereby grants to the Customer a non-exclusive and limited right to access and use the Flowfit Solution for its own internal business purposes. Such rights are non-transferable, except as expressly permitted under this Agreement or by law. For the sake of clarity, the Flowfit Solution is licensed and not sold and this Agreement does not grant the Customer the right to access or obtain the source code of the Flowfit Solution.

2.2. The Customer shall be liable to provide and to maintain, at all times and at its own costs, the Customer Equipment required to use the Flowfit Solution. 

2.3. The Customer shall control access to and use of the Flowfit Solution by the Users and is responsible for any use of the Flowfit Solution by the Users that does not comply with this Agreement.

2.4. The Customer may offer the Flowfit Solution for use by its Affiliates upon prior written authorization from XTM Flowfit. If it does, the rights granted to the Customer under this Agreement will apply to such Affiliates, but the Customer will have the sole right to enforce this Agreement against XTM Flowfit. The Customer will remain responsible for all obligations of its Affiliates’ under this Agreement and for compliance with its terms.

2.5. All rights, title and interests that are not expressly set out in this Agreement are expressly reserved by XTM Flowfit.

3. Term and duration

3.1. This Agreement shall enter into force as of the Effective Date and shall remain in force for the duration set forth on the Proposal. If no duration is set forth in the Proposal, this Agreement shall remain in force for an initial period of one (1) year (“Initial Term”). This Agreement shall then automatically renew for successive renewal terms of one (1) year (each a “Renewal Term(s)”), except if otherwise provided in the Proposal.

3.2. Each Party can terminate this Agreement at its own discretion upon a written notice given to the other Party not less than 60 days prior to the expiry of the Initial Term or of a Renewal Term. For the avoidance of doubt, termination for convenience under this section shall be effective at the expiration of the Initial Term or of the then current Renewal Term.

4. Price and payment

4.1. In consideration for the rights granted herein and the performance of Services by XTM Flowfit, the Customer shall be liable to pay the fees and cash expenses set forth in the Proposal for the Initial Term and any successive Renewal Term(s).

4.2. Fees shall increase on renewal in accordance with the most recent Proposal, or if not mentioned in the Proposal such increase shall be mutually agreed upon.

4.3. Unless otherwise expressly set forth in the Proposal, all prices are expressed in CAD and fees shall be paid in that currency. If the Proposal is issued in another currency, payment shall be made in such currency.

4.4. Fees payable to XTM Flowfit under this Agreement will be paid into XTM Flowfit’s nominated bank account by electronic funds transfer unless otherwise notified to the Customer in writing in accordance with this Agreement.

4.5. The net amount of the fees for the Initial Term or any Renewal term as well as for the performance of any Service hereunder shall be paid in advance by the Customer, within thirty (30) days of the corresponding invoice issued by XTM Flowfit.

4.6. All amounts payable under this Agreement shall be non-refundable.

4.7. Prices shall be exclusive of any tariffs, duties or taxes imposed or levied by any government or governmental agency, which shall be invoiced in addition to the fees provided for herein when applicable.

4.8. Payments not received by the due date shall bear interest at the rate of 1% per month (12% per year), compounded monthly, or the maximum rate permitted by law, whichever is less.

4.9. XTM Flowfit may further suspend the use of the Flowfit Solution and the performance of the Services without terminating this Agreement during any period in which the Customer is in default to perform its payment or other obligations under this Agreement, upon a five (5) days prior notice to the Customer. XTM Flowfit won’t be responsible or liable for any delay or failure of performance caused in whole or in part by the Customer's delay or failure with respect to the foregoing.

4.10. Fees and charges related to the Flowfit Solution and the technical support service are based on a utilization within the limits set forth in the Proposal or, failing such, deemed reasonable by XTM Flowfit. In case of requests considered excessive by XTM Flowfit, additional charges may apply.

4.11. Upgrades are not included in the rights granted to the Customer pursuant to this Agreement, unless otherwise indicated in the Proposal. A separate written agreement shall be executed between the Parties should the Customer wish to obtain such Upgrades.

4.12. All pricing terms form part of XTM Flowfit ’s Confidential Information, and the Customer agrees not to disclose them to any third party.

5. Performance of services

5.1 XTM Flowfit undertakes to supply the Services provided for in this Agreement, to the extent provided for in the Proposal, subject to the full payment thereof by the Customer and fulfilment of its other obligations.

5.2. The Customer may require the performance of Services not included herein, such as complementary training, project management, technical consulting and development, etc. (“Additional Services”), in which case it shall submit the details of its request in writing to XTM Flowfit.

5.3. Services shall in no event include the diagnosis and rectification of any event resulting from:

5.3.1. unauthorized use of the Flowfit Solution or use in violation of the Customer’s obligations under this Agreement;

5.3.2. any use of the Flowfit Solution not in accordance with the Documentation or otherwise contrary to XTM Flowfit’s instructions;

5.3.3. Flowfit Solution reconfiguration due to computer crash, computer replacement or other failure of the Customer Equipment;

5.3.4. inadequate training by the Customer of the Users on the use of the Flowfit Solution; or

5.3.5. damage due to abuse, misuse, negligence, theft, vandalism, etc. (altogether the “Not covered Service(s)”).

5.4. XTM Flowfit may agree to perform Additional Services or Not covered Services, subject to their feasibility, availability of its personnel and agreement with the Customer on the financial and technical terms and conditions. No modification to the scope of the Services to be performed under this Agreement shall be binding upon the Parties unless agreed in writing by both of them.

5.5. XTM Flowfit may, from time to time, in its discretion engage third parties to perform any of its obligations under this Agreement (each, a "Subcontractor"), provided that XTM Flowfit shall remain liable towards the Customer for the compliance by the Subcontractors with the terms hereof.

6. Technical support services

6.1. XTM Flowfit agrees to provide remote technical support via telephone, chat, email or other efficient communication method between 8AM and 5PM EST, Monday to Friday, except holidays as observed by XTM Flowfit. The purpose of the remote assistance service is to attempt to identify and resolve functional problems in the Flowfit Solution as well as to give information as to the use of the Flowfit Solution.

 

6.2. Each call received will be given a severity level by XTM Flowfit according to the following guidelines:

6.2.1. Critical Problem: when the Flowfit Solution is not operational, and the Users are not able to connect and work at all;

6.2.2. Major Problem: when the Flowfit Solution is not operational or has suffered a major loss of capability resulting in the inability to use the Flowfit Solution, or if a failure is so frequent that it precludes productive use of the Flowfit Solution or when the Flowfit Solution is operational but its capability is severely degraded, such as the inability to run a major application within the Flowfit Solution, a critical product feature or function does not work, or a failure that requires on-going intervention in order to maintain productive use;

6.2.3. Minor Problem: when the Flowfit Solution is operational and the problem does not result in a significant impact on the performance of the Flowfit Solution.

6.3. XTM Flowfit shall exercise all commercially reasonable efforts to meet the following response times:

6.3.1. Critical Problems will be acknowledged within 2 business hours and resolved as soon as possible;

6.3.2. Major Problems will be acknowledged within 4 business hours and resolved within a reasonable period; and

6.3.3. Minor Problems will be acknowledged within 1 business day and resolved in a subsequent Update.

 

6.4. The call-back response times are not guaranteed during events out of XTM Flowfit’s control (i.e. storms, electrical failure, etc.) or if the communication is not established through XTM Flowfit official support channels (xtmflowfit.atlassian.net or support@xtmflowfit.ca and/or 514 312 2485).

 

6.5. The technical maintenance and support Services shall not include services:

6.5.1 in respect of hardware problems;

6.5.2. in respect of education, training or customization;

6.5.3. in respect of a Flowfit Solution installed on equipment that does not meet the XTM Flowfit’s recommended system and network configuration for use of the Flowfit Solution set forth in the Documentation;

6.5.4. in respect to the use of the Flowfit Solution in violation of this Agreement;

6.5.5. in respect of Defects in or caused by third party softwares; or requiring on-site support.

7. Correction of defects and updates

7.1. XTM Flowfit shall deploy all reasonable efforts to correct reproducible Defects reported by the Customer. The Customer agrees to communicate to XTM Flowfit, by email or by calling XTM Flowfit’s technical support service, all the details of which it is aware concerning any Defects affecting the Flowfit Solution, in order to allow XTM Flowfit to properly perform its obligations hereunder. If, following such communication by the Customer, XTM Flowfit is unable to reproduce the Defect or otherwise concludes that such Defects:

7.1.1. were non-existent;

7.1.2. were caused by third party equipment or software not supplied by XTM Flowfit used in conjunction with the Flowfit Solution; or

7.1.3. resulted from abuse or misuse of the Flowfit Solution, XTM Flowfit may, at its discretion, require the Customer to pay for time spent to detect and, if applicable, correct such Defects, at the applicable hourly consultation rate in force at such time. If XTM Flowfit is unable to correct a reproducible Defect reported to XTM Flowfit or to provide a work around solution after using commercially reasonable efforts for a reasonable period of time, then the Customer's sole and exclusive remedy shall be to terminate this Agreement.

7.2. XTM Flowfit shall not be responsible to correct any Defect or other failure of performance of the Product caused by the following:

7.2.1. failure to maintain an installation and an operating environment and the Flowfit Solution in accordance with this Agreement, the Documentation or any notice sent by XTM Flowfit to the Customer from time to time;

7.2.2. failure of the Customer to install the then current Update;

7.2.3. use of the Flowfit Solution that materially deviates from the Documentation;

7.2.4. modification, customization, alteration or addition or attempted modification, customization, alteration or addition to the Flowfit Solution undertaken by any person other than XTM Flowfit, without XTM Flowfit's prior written approval; or

7.2.5. the abuse or misuse of the Flowfit Solution.

7.3. XTM Flowfit may update the Flowfit Solution from time to time and grant access to the Customer to Updates by making the applicable software package accessible by the Customer on a physical media or through electronic distribution. The Customer shall perform the installation of the Update under XTM Flowfit’s remote instructions, if necessary. The Update shall be presumed to have been accepted when it has been successfully installed.

7.4. XTM Flowfit shall be under no obligation to provide maintenance and support Services with respect to versions of the Flowfit Solution which have no longer been the most current version for a period of one (1) year or more.

7.5. All maintenance and support Services set forth in this Agreement shall be performed remotely. Any on-site services shall be subject to a separate written agreement and involve additional charges.

8. Obligations of the Customer

8.1. The Customer shall not, and shall cause the Users and its representatives not to:

8.1.1. copy, modify, or create derivative works of the Licensed Material;

8.1.2. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Flowfit Solution, including in connection with any time-sharing, service bureau, software as a service or other technology or service, except as permitted under this Agreement;

8.1.3. reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Flowfit Solution, in whole or in part;

8.1.4. bypass or breach any XTM Flowfit security device, or protection used by the Flowfit Solution or access or use the Flowfit Solution other than by a User;
8.1.5. input, upload, transmit, or otherwise provide to or through the Flowfit Solution any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful code;
8.1.6. damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Flowfit Solution, or XTM Flowfit ’s provision of services to any third party;
8.1.7. remove, delete, alter, or obscure any trademarks, Documentation, warranties, or disclaimers, or any copyright, trademark or other intellectual property or proprietary rights notices;
8.1.8. access or use the Flowfit Solution in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any third party or that violates any applicable law;
8.1.9. access or use the Services or the Flowfit Solution for purposes of competitive analysis of the Flowfit Solution, the development, provision or use of a competing software service or product, or any other purpose that is to the XTM Flowfit's detriment or commercial disadvantage;
8.1.10. otherwise access or use the Services or the Flowfit Solution beyond the scope of the authorization granted under this Agreement; and
8.1.11. authorize or encourage any third party to do the above mentioned.

8.2. XTM Flowfit may verify the Customer’s and its Affiliates’ compliance with this Agreement at any time upon a 30 days’ prior notice. To do so, XTM Flowfit may engage an independent auditor or ask the Customer to complete a self-audit process. The Customer must promptly provide any information and documents that XTM Flowfit or the auditor reasonably requests related to the verification and access to systems running the Flowfit Solution. If verification or self-audit reveals any unlicensed use, the Customer must, within 30 days, order sufficient licenses to cover the period of its unlicensed use. Without limiting XTM Flowfit other remedies, if unlicensed use is 5% or more of the Customer’s total use of the Flowfit Solution, the Customer must reimburse XTM Flowfit for its costs incurred in the audit process verification and acquire sufficient licenses to cover its unlicensed use at 125% of the then-current Customer price or the maximum allowed under applicable law, if less. All information and reports related to the verification process will be “Confidential Information” and used solely to verify compliance.

9. Confidentiality and intellectual property

9.1. “Confidential Information” means any information provided by or made available by a Party (the “Disclosing Party”) or its representatives to the other Party (the “Receiving Party”) or that becomes known by the Receiving Party in connection with this Agreement, including any information in any form that is secret, confidential, privileged, or not generally known by the public, whether or not it is identified as confidential at the time of disclosure. By way of illustration and without limitation, “Confidential Information” includes information relating to or about, a Party’s clients, potential clients, vendors, strategies and any other related information as well as the Intellectual Property and the Personal Information. Confidential Information does not include information that: (i) is or becomes publicly available through no breach by the Receiving Party of this Agreement; (ii) was previously known to the Receiving Party prior to the date of disclosure and not subject to an obligation of confidentiality, as evidenced by contemporaneous written records; (iii) was acquired from a third party without any breach of any obligation of confidentiality; (iv) was independently developed by a Party hereto without reference to Confidential Information of the other Party; or (v) is required to be disclosed by law, provided, however, that the Party compelled by law shall promptly inform the other Party in writing (unless notice is precluded by the applicable process), and shall only disclose that Confidential Information necessary to comply with applicable law.

9.2. Each Receiving Party agrees: (i) to treat as strictly confidential any and all Confidential Information; (ii) not to use any Confidential Information for any purpose other than as necessary for the performance of this Agreement; (iii) not to disclose the Confidential Information to any other person, except as permitted under this Agreement; (iv) to use the same care and discretion to avoid disclosure of the Confidential Information as it uses with its own similar information; and in all cases with a minimum of commercially reasonable care; and (v) to restrict access to the Confidential Information to such of its personnel or representatives, if any, who have a need to access such Confidential Information and who have been advised of and have agreed to treat such information in accordance with the terms of this Agreement.

9.3. Each Party further agrees not to (i) use the other Party’s name or logo in any marketing materials without that Party’s prior written consent or (ii) disclose to any person or entity any of the terms or conditions of this Agreement.

9.4. The Customer recognizes and agrees that all Intellectual Property Rights in or related to the Licensed Materials are the exclusive property of XTM Flowfit or are otherwise controlled by XTM Flowfit. To the extent that the Customer, any of the Customer's Affiliates or any person acting on the Customer’s behalf acquires any Intellectual Property Rights in the Licensed Materials or any other part of the Services, the Customer shall assign or procure the assignment of such Intellectual Property Rights with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to XTM Flowfit or such third party as XTM Flowfit may elect. The Customer will execute all such documents and do such things as XTM Flowfit may consider necessary to give effect to this clause.

9.5. While this Agreement is in effect and at any time thereafter, the Customer and its Affiliates shall not take any action that challenges the Intellectual Property of XTM Flowfit.

9.6. XTM Flowfit represents and warrants that (i) it is and will be the owner or licensee of all Intellectual Property rights in the Licensed Materials and has the full power and authority to grant the rights provided for herein without the consent of any other person; and (ii) the Licensed Material does not and will not infringe or misappropriate the Intellectual Property rights of any third party.

9.7. the Customer shall not reproduce the Documentation, except for a reasonable number of copies of the Documentation as is necessary to use the Flowfit Solution pursuant to this Agreement and for its internal use only. The Customer shall reproduce all confidentiality and proprietary notices on all copies of the Documentation made pursuant to the provisions of this section.

9.8. The Customer may submit comments, information, questions, data, ideas, description of processes, or other information to XTM Flowfit while using the Flowfit Solution or in the course of receiving the Services, excluding information related to the Customer’s or the Users’ identity (“Feedback”). XTM Flowfit may, in connection with any of its products or services, freely use, copy, disclose, license, distribute and exploit any Feedback, without any obligation, royalty or restriction based on Intellectual Property rights, for any purpose whatsoever. Feedback will not be considered the Customer's Confidential Information and nothing in this Agreement shall restrict XTM Flowfit's right to independently use, develop, evaluate, or market any such Feedback. The Customer hereby assigns (or will procure the assignment of) all Intellectual Property Rights in the Feedback with full title guarantee (including by way of present assignment of future Intellectual Property Rights) to XTM Flowfit at the time such Feedback is first provided to XTM Flowfit.

9.9. The Customer hereby waives (and will ensure all relevant third parties have waived) all rights to be identified as the author of any work, to object to derogatory treatment of that work and all other moral rights in the Intellectual Property Rights assigned to XTM Flowfit under this Agreement.

9.10. Except for the rights expressly granted in this Agreement, the Customer, any User, any of the Customer Affiliates and their direct and indirect sub-contractors, will not acquire in any way any title, rights of ownership, or Intellectual Property Rights of whatever nature in the Licensed Materials or Services (or any part including the Documentation) and no Intellectual Property Rights of either Party are transferred or licensed as a result of this Agreement.

9.11. To the extent any Non-Supplier Materials are made available to, or used by or on behalf of the Customer, any Affiliate or any User in connection with the use or provision of the Service or Licensed Materials, such use of Non-Supplier Materials (including all licence terms) will be exclusively governed by applicable third party terms notified or made available by XTM Flowfit or the third party and not by this Agreement. XTM Flowfit grants no Intellectual Property Rights or other rights in connection with any Non-Supplier Materials.

10. Defence against infringement claims

10.1. Subject to clauses 10.2 and 10.5, XTM Flowfit will:

10.1.1. defend at XTM Flowfit’s own expense any claim brought against the Customer by any third party alleging that the Customer's use of the Services and/or Licensed Materials infringes any copyright, database right or registered trademark, registered design right or registered patent in the United Kingdom, the United States and Canada, the European Economic Area, Australia, New Zealand and Japan (an “IP Claim”); and
10.1.2. pay, subject to clause 10.3, all costs and damages awarded or agreed in settlement or final judgment of an IP Claim.

10.2. The provisions of clause 10.1 will not apply unless the Customer:
10.2.1. promptly notifies XTM Flowfit upon becoming aware of any actual or threatened IP Claim and provide full written particulars;
10.2.2. make no comment or admission and take no action that may adversely affect XTM Flowfit’s ability to defend or settle the IP Claim;
10.2.3. provide all assistance reasonably required by XTM Flowfit subject to XTM Flowfit paying the Customer’s reasonable costs; and
10.2.4. gives XTM Flowfit sole authority to defend or settle the IP Claim, as XTM Flowfit considers appropriate.

10.3. The provisions of clause 13 will apply to any payment of costs and damages awarded or agreed in settlement or final judgment of an IP Claim under clause 10.1.

10.4. In the event of any IP Claim, XTM Flowfit may elect to terminate this Agreement immediately by written notice and promptly refund to the Customer on a pro-rata basis for any unused proportion of Fees paid in advance. This clause 10.4 is without prejudice to the Customer's rights and remedies under clauses 10.1.

10.5. XTM Flowfit will have no liability or obligation under this clause 10 in respect of (and will not be obliged to defend) any IP Claim which arises in whole or in part from:

10.5.1. any modification of the Services (or any part) or the Licensed Materials without XTM Flowfit’s express written approval;
10.5.2. any Non-Supplier Materials;
10.5.3. any Customer Data;
10.5.4. any Free or Trial Services (or any Support Services provided in connection with them);
10.5.5. any Open Source Software not embedded by XTM Flowfit;
10.5.6. any breach of this Agreement by the Customer;
10.5.7. any delay to the installation of an Update or Upgrade caused by the Customer;
10.5.8. installation or use of the Services and/or Materials (or any part thereof) otherwise than in accordance with this Agreement and the Documentation; and
10.5.9. installation or use of the Services and/or Materials (or any part thereof) in combination with any software, hardware or data that has not been supplied or expressly authorised by XTM Flowfit.

10.6. Subject to clause 13.7, the provisions of this clause 10 sets out the Customer's sole and exclusive remedy (however arising, including in contract, tort, negligence or otherwise) for any IP Claim.

10.7. Nothing in this provision shall be construed as a limitation on the Customer’s ability to retain legal counsel at the Customer’s own expense to passively monitor the proceedings.

10.8. The Customer shall defend at its own expense and indemnify and hold harmless XTM Flowfit (including its affiliates, officers, directors, employees, partners and agents) from and against any and all Losses from third party claims, loss demands, expenses, lawsuits or actions, to the extent resulting or arising out of the Customer use of the Flowfit Solution in breach of this Agreement.

11. Privacy

11.1. Both Parties shall at all times comply with the terms of the Data Processing Agreement.

11.2. The Parties acknowledge that data processed in the course of use of the Flowfit Solution or performance of this Agreement will constitute at least in part Personal Information within the meaning of Privacy laws. Such data will be mainly collected and processed by the Customer, whereby XTM Flowfit acknowledges that it will collect Personal Information of Users for the purpose of implementation and maintenance of the Flowfit Solution. Consequently, each Party undertakes, during the period of validity of this Agreement and for the entire duration provided for by Privacy Laws, to fully comply with such Privacy laws while collecting and processing Personal Information entrusted to each of them and to indemnify and hold the other Party harmless from any violation of its obligations in this regard. This concerns more specifically, but not exclusively, the obtention of the required consents from the data subjects, restriction of Personal Information treatments and of disclosure to third parties, Personal Information transfers, protection of confidentiality, secure storage, destruction within the prescribed time limits, etc. Each Party further undertakes to publish, maintain and comply at all times with a privacy policy that meets the requirements of applicable Privacy Laws.

11.3. Without limiting the generality of the foregoing, to the extent a Party collecting Personal Information (a “Data Controller”) provides access to or transfers such Personal Information to the other Party (a “Data Processor”), the Data Processor agrees:

11.3.1 to process the Personal Information strictly in accordance with the written instructions of the Data Controller;
11.3.2. not to process the Data Controller’s Personal Information in a manner that will or is likely to result in the Data Controller breaching its obligations under Privacy Laws; and
11.3.3. to provide reasonable assistance to enable the Data Controller to comply with its obligations under Privacy laws, including with respect to requests of data subjects for the exercise of their rights.

12. Security

12.1. XTM Flowfit will maintain the Flowfit Solution at a reputable third party hosting facility and maintain appropriate technical and organizational measures, including industry standard information security policies and safeguards, to preserve the security, integrity and confidentiality of the Customer’s Confidential Information and Personal Information and to protect such information against loss or theft, or unauthorized, accidental or unlawful use, or any other act or omission that compromises its security, confidentiality or integrity (hereinafter, a "Security Incident").

12.2. XTM Flowfit will notify the Customer as soon as reasonably practicable upon becoming aware of an actual or potential Security Incident and take all reasonable steps to mitigate the impact of such Security Incident and provide all reasonable assistance required by the Customer in investigating and resolving the Security Incident.

12.3. XTM Flowfit will ensure that all personnel and other representatives, prior to providing the Services, have cleared all background checks performed by XTM Flowfit in the ordinary course of its business, including checks to confirm that such personnel do not have criminal records.

13. Warranty and limitations of liability

13.1. XTM Flowfit warrants that the Services shall be performed in a professional and workmanlike manner and that it will make all commercially reasonable efforts to maintain the FlowFit solution in good working order.

13.2. XTM Flowfit makes no other warranty of any type or of any kind whatsoever arising out of or in connection with this agreement and hereby disclaims and excludes all other warranties, whether statutory, express or implied, including without limitation, those of merchantability, fitness for a particular purpose and all warranties arising from course of dealing, usage or trade practice.

13.3. In no event shall XTM Flowfit or its affiliates or their respective employees, directors, officers and agents be liable to the Customer for any special, incidental, indirect or consequential damages of any kind, or for the loss of profit arising out of or in connection with this agreement, the supply, delivery and use of flow fit solution, even if XTM Flowfit has been advised of the possibility of such potential loss or damage, except for damages resulting from XTM Flowfit’s gross negligence or willful misconduct.

13.4. XTM Flowfit, its affiliates or their respective employees, directors, officers and agents total collective liability to the Customer for damages of any kind and any indemnity arising out of or in connection with this agreement, whether claimed in contract, equity, tort, warranty or otherwise, shall in all events be limited to the sum of the lesser of CA $100,000.00 or the amount of fees due or paid to XTM Flowfit in respect of that liability period. Except for claims pertaining to damages resulting from XTM Flowfit ’s gross negligence or willful misconduct.

13.5. XTM Flowfit may make Non-Supplier Materials available for customers use in connection with the services and/or licensed materials. The Customer agrees that:

13.5.1. XTM Flowfit have no responsibility for the use or consequences of use of any Non-Supplier Materials;
13.5.2. The Customer's use of any Non-Supplier Materials will be governed by the applicable terms between the Customer and the owner or licensor of the relevant Non-Supplier Materials;
13.5.3. The Customer is solely responsible for any Non-Supplier Materials used in connection with the services and/or licensed materials and for compliance with all applicable third party terms which may govern the use of such Non-Supplier Materials; and
13.5.4. The continued availability, compatibility with the services, licensed materials and performance of the Non-Supplier Materials is outside the control of XTM Flowfit and XTM Flowfit have no responsibility for any unavailability of or degradation in the services and/or licensed materials to the extent resulting from the availability, incompatibility or performance of any of the non-supplier materials.

13.6. It is agreed that the limitation of remedies/liability set forth herein allocates the commercial risks between XTM Flowfit and the Customer arising out of or in connection with this Agreement, including but not limited to Defects, and that the financial terms of section 4 and the other terms and conditions hereof reflect this allocation of risk.

13.7. Notwithstanding any other provision of this agreement, the liability of the parties shall not be limited in any way in respect of death or personal injury caused by negligence; fraud or fraudulent misrepresentation; or any other losses which cannot be excluded or limited by applicable law.

14. Insurance

14.1. XTM Flowfit shall at all times during the term of this Agreement maintain the following policies of insurance at their expense;

14.2. Commercial General Liability insurance with a minimum limit of CAD $2Million per occurrence.

14.3.  Errors and omissions (professional) liability insurance appropriate to XTM Flowfit’s profession. Coverage shall be provided for an error, act, or omission arising out of the scope of XTM Flowfit ’s Services as defined in this Agreement. Coverage shall be written with limits of no less than CAD $2 million per loss or claim and in the aggregate.

14.4. Cyber insurance with coverage for data security breaches, losses and violations of applicable data and Privacy laws with limits of no less than CAD $5 million per loss or claim.

14.5. Workers' Compensation and Employer's Liability for Services performed in the U.S., coverage must meet statutory requirements but be no less than $1,000,000 per accident.

14.6. Commercial Crime or Fidelity Insurance with a limit of $2,000,000 per occurrence.

15. Term and termination

15.1 Either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party:

15.1.1. breaches this Agreement, and such breach remains uncured ten (10) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
15.1.2. ceases to carry on business in the ordinary course, makes a general assignment for the benefit of its creditors, becomes subject to any involuntary proceeding under any domestic or foreign bankruptcy law, commences or institutes any application, proceeding, or other action under any law relating to bankruptcy, insolvency, winding-up, reorganization, administration, plan of arrangement, relief or protection of debtors or similar laws.

15.2. XTM Flowfit may terminate this Agreement, effective on written notice to the Customer, if the Customer:

15.2.1. fails to pay any amount provided for hereunder, and such failure continues more than thirty (30) days after XTM Flowfit’s delivery of written notice thereof;
15.2.2. is in violation of the confidentiality and Intellectual Property provisions of this Agreement; or
15.2.3. uses of the FlowFit solution in violation with the terms of this Agreement.

15.3. Upon termination of this Agreement, XTM Flowfit shall immediately cease to provide access to the Flowfit Solution and to perform the Services.

15.4 To the extent this Agreement terminates due to reasons listed under 15.1 or 15.2, (excluding XTM Flowfit’s failure to remedy a breach) all fees that would have become payable had the Agreement remained in effect until expiration of the Initial Term or Renewal Term will become immediately due and payable, and the Customer shall pay such fees, together with all previously accrued but not yet paid fees, on receipt of XTM Flowfit's invoice therefore. For the avoidance of doubt, any prepaid fees for the Initial Term or Renewal Term will not be refunded to the Customer due to termination of this Agreement due to the Customers breach under 15.1 or due to reasons listed at 15.2.

15.5. XTM Flowfit makes daily back-ups of all of the Customer’s data. Upon termination of this Agreement, XTM Flowfit agrees to provide the Customer, on written request, a digital copy in an easily readable format of all the Customer data hosted by XTM Flowfit, at no cost to the Customer provided it has fulfilled all its payment obligations. All the Customer data will be deleted thirty (30) days after termination or expiry of the Agreement, whichever is soonest.

15.6. Notwithstanding termination of this Agreement, all provisions which by their nature are intended to survive such termination shall so survive.

16. Governing law and settlement of disputes

16.1. This Agreement shall be governed and construed in accordance with the laws in force in the province of Quebec, Canada, without giving effect to principles of conflicts of law. The courts having jurisdiction in and for the district of Montreal in the province of Quebec, Canada shall have exclusive jurisdiction in respect of any dispute related to this Agreement.

 

17. Notices

17.1. Any formal notice or communication to be given under this Agreement shall be in writing and sent by international tracked and signed for post, email or hand delivered. Any such notice or communication, if sent by email, shall be deemed to have been received on the same business day if sent prior to 5 p.m. (local time of the recipient), otherwise on the next business day, provided proof of sending of such notice can be produced or, if delivered by international express courier service or by hand, shall be deemed to have been received at the time it is delivered. Notices shall be sent to the postal or email address of the contact person of the Customer as set out in the Proposal, or any purchase order issued by the Customer. Notices issued to XTM Flowfit shall be sent to XTM Flowfit Software Inc., for the attention of the Legal Team at Cannon Green 27 Bush Lane, London, EC4R 0AA, UK, with a copy sent by email to legal@xtm.ai.

17.2. Any changes to the contact person for either Party will be notified in writing by email to the other Party's contact and such change shall take effect seven days after the date of said notification.

18. Miscellaneous

18.1. No delay, failure, or default, other than a failure to pay fees when due, will constitute a breach of this Agreement to the extent caused by acts of war, terrorism, hurricanes, earthquakes, power failure, internet network disruption, other acts of God or of nature, strikes or other labor disputes, riots or other acts of civil disorder, embargoes, or other causes beyond the performing Party's reasonable control.

18.2. If any provision of this Agreement is held invalid or unenforceable by any court or agency of competent jurisdiction, it shall be replaced, to the extent possible, by a legally valid and enforceable provision. The remainder of this Agreement shall nevertheless continue in full force and effect.
18.3. In the event of any inconsistency or conflict between the terms and provisions of this Agreement and those of any schedule or other document incorporated by reference to this Agreement, the following order of precedence will apply:

18.3.1. the Proposal;
18.3.2. this Agreement; and
18.3.3. the Documentation.

18.4. Neither Party will be deemed to have waived any of its rights under this Agreement by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of this Agreement will constitute a waiver of any other breach of this Agreement.

18.5. The Customer shall not sell, transfer, or assign any right, title or interest it has in this Agreement or any right it has in the Licensed Materials, without the prior written consent of XTM Flowfit. Any assignment not in accordance with this section shall be void. XTM Flowfit may, upon notice to the Customer, sell, transfer or assign any right, title or interest it has in this Agreement.

18.6. This Agreement does not make either Party the employee, agent or legal representative of the other for any purpose whatsoever. Neither Party is granted any right or authority to assume or to create any obligation or responsibility, express or implied, on behalf of or in the name of the other Party.

18.7. This Agreement may not be modified or amended except in writing signed by a duly authorized representative of each Party; no other act, document, usage, or custom shall be deemed to amend or modify this Agreement.

18.8. This Agreement may be executed in one or more counterparts, each of which shall be deemed to be an original but all of which taken together shall constitute one and the same agreement. This Agreement, and any amendments hereto, waivers hereof or consents or notifications hereunder, to the extent signed and delivered by email with scan attachment, shall be treated in all manner and respects as an original contract and shall be considered to have the same binding legal effects as if it were the original signed version thereof delivered in person.

18.9. This Agreement constitutes the entire agreement between the Parties and supersedes all previous agreements, understandings and arrangements between them in respect of its subject matter, whether in writing or oral.

18.10. The Parties have expressly requested that this Agreement be drawn up in English and that all modifications thereof can be made in this language.

XTM Flowfit Software Inc. (Formerly known as Consoltec Inc.)/Logiciel XTM Flowfit Inc. (anciennement connue sous le nom de Consoltec Inc.) Incorporated Company/ Société par actions 3000 Rue Omer Lavallée, suite 302 Montréal, QC, H1Y 3R8, Canada