Last Updated: June 14, 2024
6.1 We may from time to time suspend the Service for the purposes of scheduled maintenance to the Platform, providing that such scheduled maintenance must be carried out in accordance with this Clause 6.
6.2 We shall where practicable give you at least 5Business Days' prior written notice of scheduled maintenance that will, or is likely to, affect the availability of the Service or have a material negative impact on the Service.
6.3 We shall ensure that all scheduled maintenance is carried out outside Business Hours and that, during each calendar month, the aggregate period during which the Service is unavailable as a result of scheduled maintenance, or negatively affected by scheduled maintenance to a material degree, does not exceed two (2) hours.
7.1. We shall provide the Support Services to you during the Term with reasonable skill and care and in accordance with Schedule 2 (Support SLA).
7.2. We may suspend the provision of the Support Services if any amount due to be paid by you to us under the Agreement is overdue and we have given you at least 5 Business Days' written notice, following the amount becoming overdue, of our intention to suspend the Support Services on this basis.
8.1. All amounts stated in or in relation to these Terms are, unless the context requires otherwise, stated exclusive of any applicable value added taxes, which will be added to those amounts and payable by you to us.
8.2. The Charges shall increase by 5% at the start of each Renewal Term.
8.3. You must pay the Charges to us in accordance with the payment schedule in the Order Form, free and clear without any set-off, counterclaim, deduction or withholding of any kind, save as may be required by law, within the period of 10 Business Days following the date of an invoice by direct debit or bank transfer (using payment details that we notify to you from time to time).
8.4. If you do not pay any amount properly due to us under the Agreement, we may charge you interest on the overdue amount at the rate of 4% per annum above the Bank of Canada base rate from time to time (which interest will accrue daily until the date of actual payment and be compounded at the end of each calendar month).
9.1 Each party must:
9.1.1. keep the other party’s Confidential Information strictly confidential;
9.1.2. not disclose the other party’s Confidential Information to any person without the other party’s prior written consent, and then only under conditions of confidentiality no less onerous than those contained in these Terms;
9.1.3. use the same degree of care to protect the confidentiality of the other party’s Confidential Information as it uses to protect its own confidential information of a similar nature, being at least a reasonable degree of care;
9.1.4. act in good faith at all times in relation to the other party’s Confidential Information; and
9.1.5. not use or allow the use of any of the other party’s Confidential Information for any purpose other than performing its obligations or exercising its rights under the Agreement.
9.2. Notwithstanding Clause 9.1, each party may disclose the other party’s Confidential Information to its officers, employees, professional advisers, insurers, agents and subcontractors who have a need to access the Confidential Information for the performance of their work with respect to the Agreement and who are bound by a written agreement or professional obligation to protect the confidentiality of the Confidential Information.
9.3. This Clause 9 imposes no obligations on either party with respect to:
9.3.1 Confidential Information that is known to it before disclosure under the Agreement and is not subject to any other obligation of confidentiality;
9.3.2 Confidential Information that is or becomes publicly known through no act or default of the receiving party;
9.3.3 Confidential Information that is obtained from a third party in circumstances where the receiving party has no reason to believe that there has been a breach of an obligation of confidentiality; or
9.4. The restrictions in these Clause 9 do not apply to the extent that any Confidential Information is required to be disclosed by any law or regulation, or by any judicial or governmental order or request, or pursuant to disclosure requirements relating to the listing of the stock of the receiving party on any recognized stock exchange, provided that, if a party makes a disclosure to which this Clause 9.4 applies then, to the extent permitted by Applicable Law, it shall promptly notify the other party of the fact of the disclosure, the identity of the disclose and the Confidential Information disclosed.
9.5. The provisions of this Clause 9 shall continue in force indefinitely following termination of the Agreement.
10.1. We warrant to you that:
10.1.1. we have the legal right and authority to enter into the Agreement and to perform our obligations under the Agreement;
10.1.2. we have or have access to all necessary know-how, expertise and experience to perform our obligations under the Agreement.
10.2. You warrant to us that you have the legal right and authority to enter into the Agreement and to perform your obligations under the Agreement.
10.3. All of the parties' warranties and representations in respect of the subject matter of the Agreement are expressly set out in these Terms. To the maximum extent permitted by Applicable Law, no other warranties or representations concerning the subject matter of the Agreement will be implied into the Agreement or any related contract.
11.1. You shall indemnify, defend, and hold harmless Spexi and its officers, directors, employees, agents, affiliates, successors, assigns, and licensees from and against any losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the cost of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers, arising out of or in connection with any third-party claim, suit, action, or proceeding (each a "Third-Party Claim")relating to any actual or alleged infringement, violation or misappropriation of a third party’s proprietary rights, intellectual property rights (except for copyright), or other rights arising out of your use of the Content;
11.2 Spexi shall indemnify, defend, and hold harmless you and your officers, directors, employees, agents, affiliates, successors, assigns, and licensees from and against any Third-Party Claim relating to:
11.2.1. any actual or alleged infringement, violation or misappropriation of a third party’s intellectual property or other rights arising out of Client’s use of the Platform (not including the Content);and
11.2.2. any actual or alleged infringement of a third party’s copyright arising out of the delivery or use of the Content. In the event of any such Third-Party Claim, Spexi will secure such rights or delivery new Content in accordance with the Order Form, provided that the provision of such Service in accordance with your instructions set out in the Order Form are permitted by law. The forgoing is your sole remedy in the event of a Third-Party Claim relating to any actual or alleged copyright infringement.
11.3. If we reasonably determine, or any third party alleges, that the use of the Platform (not including the Content) by you in accordance with the Agreement infringes any person's Intellectual Property Rights, we may at our own cost and expense:
11.3.1. modify the Platform in such a way that it no longer infringes the relevant Intellectual Property Rights; or
11.3.2. procure for you the right to use the Platform in accordance with the Agreement.
11.4. Notwithstanding the foregoing Clauses 11.2-11.3, if any Claim is based on the following, Spexi will not be responsible to indemnify Client:
11.4.1. any combination of the Platform with services, products, programs, or data provided by a third party; or
11.4.2. use of the Platform in violation of this Agreement or any Platform Terms.
12.1 You acknowledge that:
12.1.1. complex software is never wholly free from defects, errors and bugs, and we give no warranty or representation that the Service will be wholly free from defects, errors and bugs;
12.1.2. complex software is never entirely free from security vulnerabilities, and we give no warranty or representation that the Service will be entirely secure;
12.1.3. the Service is designed to be compatible only with the Supported Web Browsers and software and systems specified as compatible in the Documentation, and we do not warrant or represent that the Service will be compatible with any other web browsers, software or systems;
12.1.4. it is not possible for us to know or control what information is captured in Content, and we do not warrant or represent that the Content is accurate, complete, free of non-public information, information subject to data protection laws or information comprising third party Intellectual Property Rights or that it will meet your requirements or expectations or be suitable for any particular purposes, regardless of whether such requirements, expectations or purposes were made known to us; and
12.1.5. we will not provide any legal, financial, accountancy or taxation advice under the Agreement or in relation to the Service, and we do not warrantor represent that the Service or the use of the Service by you will not give rise to any legal liability on the part of you or any other person.
13.1. Nothing in these Terms will limit or exclude any liability for death or personal injury resulting from negligence, fraud or fraudulent misrepresentation or any other liability that cannot be excluded or limited under Applicable Law.
13.2. The limitations and exclusions of liability set out in this Clause 13 and elsewhere in these Terms are subject to Clause 13.1 and govern all liabilities arising under the Agreement or relating to the subject matter of the Agreement, including liabilities arising in contract, in tort (including negligence), performance of indemnity obligations, and for breach of statutory duty, except to the extent expressly provided otherwise in these Terms.
13.3. Neither party shall be liable to the other in respect of any losses arising out of a Force Majeure Event.
13.4. We shall not be liable to you in respect of any:
13.4.1. loss of profits or anticipated savings;
13.4.2. loss of revenue or income;
13.4.3. loss of use or production;
13.4.4. loss of business, contracts or opportunities; or
13.4.5. loss or corruption of any data, database or software.
13.5. Except for a breach of confidentiality or its indemnification obligations hereunder, neither party shall be liable to the other party in respect of any special, indirect or consequential loss or damage.
13.6. Except for a breach of confidentiality or our indemnification obligations hereunder, our aggregate liability to you under the Agreement shall not exceed the lesser of $50,000 or the Charges paid by you to us for the Service in the 12 months preceding the event giving rise to the relevant liability.
14.1. If a Force Majeure Event gives rise to a failure or delay in either party performing any obligation under the Agreement (other than any obligation to make a payment), that obligation will be suspended for the duration of the Force Majeure Event.
14.2. A party that becomes aware of a Force Majeure Event which gives rise to, or which is likely to give rise to, any failure or delay in that party performing any obligation under the Agreement, must promptly notify the other and inform the other of the period for which it is estimated that such failure or delay will continue.
14.3. A party whose performance of its obligations under the Agreement is affected by a Force Majeure Event must take reasonable steps to mitigate the effects of the Force Majeure Event.
15.1 Either party may terminate the Agreement at the end of the end of the Initial Term or any Renewal Term by giving to the other party not less than30 days' prior written notice of termination.
15.2. Either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
15.2.1 the other party commits any material breach of the Agreement, and the breach is not remediable; or
15.2.2. the other party commits a material breach of the Agreement, and the breach is remediable but the other party fails to remedy the breach within the period of 30 days following the giving of a written notice to the other party requiring the breach to be remedied.
15.3. Subject to Applicable Law, either party may terminate the Agreement immediately by giving written notice of termination to the other party if:
15.3.1. the other party is dissolved, ceases to conduct all (or substantially all) of its business, is or becomes unable to pay its debts as they fall due, is or becomes insolvent or is declared insolvent, or convenes a meeting or makes or proposes to make any arrangement or composition with its creditors;
15.3.2. an administrator, administrative receiver, liquidator, receiver, trustee, manager or similar is appointed over any of the assets of the other party; or
15.4. We may terminate the Agreement for any reason in our sole discretion immediately by giving written notice to you.
16.1 On termination of the Agreement, you may not access any Content and must immediately cease using and return or destroy all Content using a method or form authorized by Spexi. If you wish to download any Content, you must notify us of your request within 15 days of termination and we may agree to allow you to download specified Content. Any such agreement shall constitute a separate agreement to the Agreement and shall be subject to you paying charges for the downloaded Content and to license terms that we will specify in writing in that agreement.
16.2 Within 30 days following the termination of the Agreement for any reason:
16.2.1 you must pay us any Charges in respect of Services provided to you before termination of the Agreement; and
16.2.2 we must refund you any Charges paid by you to us in respect of Services that were to be provided to you after termination of the Agreement, less any costs already paid or incurred by us in respect of those Services prior to the effective date of termination,
without prejudice to the parties' other legal rights.
17.1 Any notice from one party to the other party under the Agreement must be given by email using the contact email address setout in the Order Form for Customer and emily@spexi.com for Spexi.
17.2 Notices shall be deemed to be received at the time of the sending of the email, provided that the sending party retains written evidence that the email has been sent and provided that, if the stated time of deemed receipt is not within Business Hours, then the time of deemed receipt shall be when Business Hours next begin after the stated time.
17.3 The addressee and contact details set out in the Order Form and Clause 17.1 maybe updated by a party giving written notice of the update to the other party in accordance with this Clause 17.
18.1 We may subcontract any of our obligations under the Agreement. We shall remain responsible to you for the performance of any subcontracted obligations. You acknowledge and agree that we may subcontract to any reputable third party hosting business the hosting of the Platform and the provision of services in relation to the support and maintenance of the Platform.
18.2 We may assign, transfer or otherwise deal with our contractual rights and obligations under the Agreement. Save to the extent expressly permitted by Applicable Law, you must not assign, transfer or otherwise deal with your contractual rights and/or obligations under the Agreement without our prior written consent, such consent not to be unreasonably withheld or delayed, providing that you may assign the entirety of your rights and obligations under the Agreement to any Affiliate of yours or to any successor to all or a substantial part of your business.
18.3 No breach of any provision of the Agreement will be waived except with the express written consent of the party not in breach. No waiver of any breach of any provision of the Agreement shall be construed as a further or continuing waiver of any other breach of that provision or any breach of any other provision of the Agreement.
18.4. If a provision of the Agreement is determined by any court or other competent authority to be unlawful and/or unenforceable, the other provisions will continue in effect. If any unlawful and/or unenforceable provision of the Agreement would be lawful or enforceable if part of it were deleted, that part will be deemed to be deleted, and the rest of the provision will continue in effect.
18.5. The Agreement is for the benefit of the parties and is not intended to benefit or be enforceable by any third party. The exercise of the parties' rights under the Agreement is not subject to the consent of any third party.
18.6. The Agreement may not be varied except in accordance with this Clause 18.6 The Agreement may be varied by means of a written document signed by or on behalf of each party. We may vary the Agreement by giving you at least 30 days' written notice of the proposed variation, providing that if we give you a notice under this Clause 18.6, you shall have the right to terminate the Agreement by giving us written notice of termination at any time during the period of 14 days following receipt of our notice.
18.7. The Order Form and these Terms constitute the entire agreement between the parties in relation to the subject matter of the Agreement and shall supersede all previous agreements, arrangements and understandings between the parties in respect of that subject matter. Subject to Clause 13.1, neither party will have any remedy in respect of any misrepresentation (whether written or oral) made to it upon which it relied in entering into the Agreement.
18.8 The Agreement shall be governed by and construed in accordance with the laws of the Province of British Columbia, Canada. The parties hereto hereby irrevocably attorn to the jurisdiction of the courts in the Province of British Columbia, Canada and with respect to any and all issues arising from these terms.