Agility CMS

MASTER SUBSCRIPTION AGREEMENT

Version 3.0 

Last updated on June 21st, 2021. 

 

INTRODUCTION 

This Master Subscription Agreement governs Customer’s acquisition and use of services provided by Agility Inc.  Capitalized terms have the definitions set forth herein. This Agreement is effective between Customer and Agility as of the date of Customer’s accepting this Agreement (the “Effective Date”). 

If Customer registers for a free trial of Services or for Free Services, the applicable provisions of this Agreement will also govern that free trial or those Free Services.  

By accepting this agreement by (1) clicking a box indicating acceptance, (2) executing an order form that references this Agreement, or (3) using Free Services, Customer agrees to the terms of this Agreement. If the individual accepting this Agreement is accepting on behalf of a company or other legal entity, such individual represents that they have the authority to bind such entity to these terms and conditions, in which case the term “Customer” shall refer to such entity. If the individual accepting this Agreement does not have such authority, or does not agree with these terms and conditions, such individual must not accept this Agreement and may not use the Services.  

If Customer enters or has entered into a customer agreement with Agility that states that it takes precedence over this Master Subscription Agreement (an “Enterprise Agreement”), the terms and conditions of that Enterprise Agreement will take precedence over this Master Subscription Agreement with respect to the accounts and Services to which that Enterprise Agreement applies. 

 

1: DEFINITIONS 

“Agreement” means this Master Subscription Agreement, together with any Order Forms and the Data Processing Addendum, if applicable.  

“Beta Services” means services or functionality that may be made available by Agility to Customer to try at its option at no additional charge which are clearly designated as beta, pilot, limited release, developer preview, non-production, evaluation, or by a similar description.  

“Content” means information obtained by Agility from publicly available sources or its third party content providers and made available to Customer through the Services, Beta Services or pursuant to an Order Form, as more fully described in the Documentation.  

“Customer” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of a company or other legal entity, the company or other legal entity for which such individual is accepting this Agreement.  

“Customer Data” means electronic data, materials and information submitted by or for Customer to the Services, excluding Content and Non-Agility Applications.  

“Data Processing Addendum” means Agility’s Data Processing Addendum, which is set forth in Exhibit “A” to this Agreement. 

“Documentation” means the applicable Service’s technical feature and specification documentation published on the Service’s website, as well as Agility’s its usage guides and policies, as updated from time to time, accessible via the Service’s website.  

“Free Services” means Services that Agility makes available to Customer free of charge. Free Services exclude Services offered as a free trial and Purchased Services.  

“Malicious Code” means code, files, scripts, agents or programs intended to do harm, including, for example, viruses, worms, time bombs and Trojan horses.  

“Non-Agility Application” means a Web-based, mobile, offline or other software application functionality that interoperates with a Service, that is provided by Customer or by a third party. 

“Order Form” means an ordering document, order form in the applicable Agility purchasing website, or statement of work specifying the Services to be provided hereunder that is entered into between Customer and Agility, including any addenda and supplements thereto.  

“Purchased Services” means Services that Customer purchases under an Order Form, as distinguished from Free Services or those provided pursuant to a free trial.  

“Services” means the products and services that are ordered by Customer under an Order Form, or provided to Customer free of charge (as applicable) or under a free trial, and made available online by Agility, including associated Agility offline or mobile components, as described in the Documentation. “Services” exclude Content and Non-Agility Applications. Services includes any training, advising, customization, integration and development activities that Agility performs in relation to the Services, unless Customer and Agility enter into a separate agreement related to those activities. 

“User” means, in the case of an individual accepting these terms on his or her own behalf, such individual, or, in the case of an individual accepting this Agreement on behalf of a company or other legal entity, an individual who is authorized by Customer to use a Service, for whom Customer has purchased a subscription (or in the case of any Services provided by Agility without charge, for whom a Service has been provisioned), and to whom Customer (or, when applicable, Agility at Customer’s request) has supplied a user identification and password (for Services utilizing authentication). Users may include, for example, employees, consultants, contractors and agents of Customer, and third parties with which Customer transacts business and to whom Customer has given access to the Services.  

 

2: AGILITY RESPONSIBILITIES  

2.1  Provision of Purchased Services. Agility will (a) make the Services and Content available to Customer pursuant to this Agreement, and the applicable Order Forms and Documentation, (b) provide applicable Agility standard support for the Purchased Services to Customer at no additional charge, and/or upgraded support if purchased, (c) use commercially reasonable efforts to make the online Purchased Services available 24 hours a day, 7 days a week, except for: (i) planned downtime (of which Agility shall give advance electronic notice), and (ii) any unavailability caused by circumstances beyond Agility’s reasonable control, including, for example, an act of God, act of government, flood, fire, earthquake, civil unrest, act of terror, strike or other labor problem (other than one involving Agility employees), Internet service provider failure or delay, Non-Agility Application, or denial of service attack, and (d) provide the Services in accordance with laws and government regulations applicable to Agility’s provision of its Services to its customers generally (i.e., without regard for Customer’s particular use of the Services), and subject to Customer’s use of the Services in accordance with this Agreement, the Documentation and the applicable Order Form.  

2.2  Protection of Customer Data. Agility will maintain reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, consistent with business practices prevailing at the time in Agility’s industry, and in accordance with this Agreement, the Documentation and the applicable Order Form. Those safeguards will include, but will not be limited to, measures designed to prevent unauthorized access to or disclosure of Customer Data (other than by Customer or Users). 

After termination by Customer of a Service or of this Agreement, Agility will have no obligation to maintain or provide any Customer Data used for that Service, or under this Agreement, as the case may be, and Agility will thereafter timely delete or destroy or anonymize all copies of such Customer Data in its systems or otherwise in its possession or control, unless legally prohibited.  If Agility terminates Customer’s account, Agility will thereafter timely delete or destroy or anonymize all copies of such Customer Data in its systems or otherwise in its possession or control, unless legally prohibited, and except as required by law Agility will provide Customer a reasonable opportunity to retrieve its Customer Data. 

If Customer uses the Services to process personal information of any individual, Customer acknowledges that for purposes of such personal information, Customer is the “data controller” and Agility is the “data processor” or “service provider” of such personal information, as such terms are used in European, Californian and other privacy laws, and that Agility is processing such information for and on behalf of Customer under the terms of and in accordance with this Agreement, as set forth in the Data Processing Addendum.  Agility shall not use such personal information to independently market or advertise to the applicable individuals unless they are also using the Services as a customer thereof. In addition, if: (a) Customer is established in the European Economic Area (EEA) or in the state of California; (b) Customer shall use the Services to provide goods or services to its customers or end users in the EEA or in the state of California; or (c) Customer is otherwise subject to the requirements of the EU General Data Protection Regulation or the California Consumer Privacy Act of 2018, Agility’s collection and use of personal information of any residents or the EEA or California, as the case may be, is also subject to the Data Processing Addendum.  The Data Processing Addendum, if applicable, amends and forms part of this Agreement. 

2.3  Agility Personnel. Agility will be responsible for the performance of its personnel (including its employees and contractors) and their compliance with Agility’s obligations under this Agreement, except as otherwise specified in this Agreement.  

 

2.4  Beta Services. From time to time, Agility may make Beta Services available to Customer at no charge. Customer may choose to try such Beta Services or not in its sole discretion. Any use of Beta Services is subject to Agility’s then current terms and conditions for such Beta Services, and in any event, subject to such terms and conditions, notwithstanding the “Representations, Warranties, Exclusive Remedies and Disclaimers” and “Indemnification by Agility” sections below, the Beta Services are provided “as-is” without any representation or warranty of any kind, and Agility shall have no indemnification obligations nor liability of any type with respect to the Beta Services unless such exclusion of liability is not enforceable under applicable law in which case Agility’s liability with respect to the Beta Services shall not exceed $10.00. Without limiting the foregoing, Agility does not represent or warrant to Customer that: (a) Customer’s use of the Beta Services will meet Customer’s requirements, (b) Customer’s use of the Beta Services will be uninterrupted, timely, secure or free from error, and (c) usage data provided from Customer’s use of the Beta Services will be accurate. Notwithstanding anything to the contrary in the “Limitation of Liability; Insurance” section below, Customer shall be fully liable under this Agreement to Agility for any damages arising out of Customer’s use of the Beta Services, any breach by Customer of this Agreement in its use of the Beta Services and any of Customer’s indemnification obligations hereunder. 

 

2.5  Free Trial. If Customer registers on Agility’s website for a free trial, Agility will make the applicable Service(s) available to Customer on a trial basis free of charge until the earlier of (a) the end of the free trial period for which Customer registered to use the applicable Service(s), or (b) the start date of any Purchased Service subscriptions ordered by Customer for such Service(s), or (c) termination by Agility in its sole discretion. Additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. Customer is solely responsible for exporting Customer Data from the Services prior to termination of Customer’s free trial period, provided that if Agility terminates Customer’s account prior to the end of a free trial, except as required by law Agility will provide Customer a reasonable opportunity to retrieve its Customer Data. 

Notwithstanding the “Representations, Warranties, Exclusive Remedies and Disclaimers” and “Indemnification by Agility” sections below, during the free trial the Services are provided “as-is” without any representation or warranty of any kind, and Agility shall have no indemnification obligations nor liability of any type with respect to the Services for the free trial period unless such exclusion of liability is not enforceable under applicable law in which case Agility’s liability with respect to the Services provided during the free trial shall not exceed $10.00. Without limiting the foregoing, Agility does not represent or warrant to Customer that: (a) Customer’s use of the Services during the free trial period will meet Customer’s requirements, (b) Customer’s use of the Services during the free trial period will be uninterrupted, timely, secure or free from error, and (c) usage data provided during the free trial period will be accurate. Notwithstanding anything to the contrary in the “Limitation of Liability; Insurance” section below, Customer shall be fully liable under this Agreement to Agility for any damages arising out of Customer’s use of the Services during the free trial period, any breach by Customer of this Agreement during the free trial period and any of Customer’s indemnification obligations hereunder.  

Customer shall review the applicable Services’ documentation during the trial period to become familiar with the features and functions of the Services before making a purchase.  

 

2.6 Free Services. Agility may make Free Services available to Customer. Use of Free Services is subject to the terms and conditions of this Agreement. In the event of a conflict between this section and any other portion of this Agreement, this section shall control. Free Services are provided to Customer without charge up to certain limits as described in the Documentation. Usage over these limits requires Customer’s purchase of additional resources or services. Customer agrees that Agility, in its sole discretion and for any or no reason, may terminate Customer’s access to the Free Services or any part thereof. Customer agrees that any termination of Customer’s access to the Free Services may be without prior notice, and Customer agrees that Agility will not be liable to Customer or any third party for such termination. Customer is solely responsible for exporting Customer Data from the Free Services prior to termination of Customer’s access to the Free Services for any reason, provided that if Agility terminates Customer’s account, except as required by law Agility will provide Customer a reasonable opportunity to retrieve its Customer Data.  

Notwithstanding the “Representations, Warranties, Exclusive Remedies and Disclaimers” and “Indemnification by Agility” sections below, the Free Dervices are provided “as-is” without any representation or warranty of any kind, and Agility shall have no indemnification obligations nor liability of any type with respect to the Free Services unless such exclusion of liability is not enforceable under applicable law in which case Agility’s liability with respect to the Free Services shall not exceed $10.00. Without limiting the foregoing, Agility does not represent or warrant to Customer that: (a) Customer’s use of the Free Services will meet Customer’s requirements, (b) Customer’s use of the Free Services will be uninterrupted, timely, secure or free from error, and (c) usage data provided through the Free Services will be accurate. Notwithstanding anything to the contrary in the “Limitation of Liability; Insurance” section below, Customer shall be fully liable under this Agreement to Agility for any damages arising out of Customer’s use of the Free Services, any breach by Customer of this Agreement in its use of the Free Services and any of Customer’s indemnification obligations hereunder.  

 

3: USE OF SERVICES AND CONTENT 

3.1  Subscriptions. Unless otherwise provided in the applicable Order Form or Documentation, (a) Purchased Services and access to Content are purchased as subscriptions for the term stated in the applicable Order Form, (b) subscriptions for Purchased Services may be added during a subscription term at the same pricing as the underlying subscription pricing, prorated for the portion of that subscription term remaining at the time the subscriptions are added, and (c) any added subscriptions will terminate on the same date as the underlying subscriptions. Customer agrees that its purchases are not contingent on the delivery of any future functionality or features, or dependent on any oral or written public comments made by Agility regarding future functionality or features.  

 

3.2  Usage Limits. Services and Content may be subject to usage limits specified in Order Forms and Documentation. If Customer exceeds a usage limit, Agility may work with Customer to seek to reduce Customer’s usage so that it conforms to that limit. If, notwithstanding Agility’s efforts, Customer is unable or unwilling to abide by a usage limit, Customer will execute an Order Form for additional quantities of the applicable Services or Content promptly upon Agility’s request, and/or pay any invoice for excess usage in accordance with the “Invoicing and Payment” section below.  

 

3.3  Customer Responsibilities. Customer will (a) be responsible for Users’ compliance with this Agreement, Documentation and Order Forms, (b) be responsible for the accuracy, quality and legality of Customer Data, the means by which Customer acquired Customer Data, Customer’s use of Customer Data with the Services, and the interoperation of any Non-Agility Applications with which Customer uses Services or Content, (c) use commercially reasonable efforts to prevent unauthorized access to or use of Services and Content, and notify Agility promptly of any such unauthorized access or use, (d) use Services and Content only in accordance with this Agreement, Documentation, Order Forms and applicable laws and government regulations, and (e) comply with the terms of service of any Non-Agility Applications with which Customer uses Services or Content. Any use of the Services in breach of the foregoing by Customer or Users that in Agility’s judgment threatens the security, integrity or availability of Agility’s services, may result in Agility’s immediate suspension of the Services, however Agility will use commercially reasonable efforts under the circumstances to provide Customer with notice and an opportunity to remedy such violation or threat prior to any such suspension.  

 

3.4 Agility is Not Responsible for Our Customers’ Use of the Services.  Agility has not reviewed, and cannot review, all of the material posted by its customers using the Services, and cannot therefore be responsible for that material's content, use or effects. By operating the Services, Agility does not represent or imply that it endorses the material posted by Customer or Agility’s other customers, or that it believes such material to be accurate, useful or non-harmful. Agility’s customers and visitors to Agility’s customers’ sites are responsible for taking precautions as necessary to protect themselves and their computer systems from viruses, worms, Trojan horses, and other harmful or destructive content. The Services and Agility’s customers’ use of the Services may contain or transmit materials that visitors to our customers’ sites find offensive, indecent, or otherwise objectionable, as well as content containing technical inaccuracies, typographical mistakes, and other errors. The Services may also contain material that violates the privacy or publicity rights, or infringes the intellectual property and other proprietary rights, of third parties, or the downloading, copying or use of which is subject to additional terms and conditions, stated or unstated. Agility disclaims any responsibility for any harm resulting from the use by visitors of Agility’s customers’ sites, from users of Agility’s Services, or from any downloading by those visitors of any content there posted. 

 

3.5  Acceptable Use Provisions. 

Usage Restrictions.  Customer will not and will not allow any third party including Users to (a) make any Service or Content available to anyone other than Customer or Users, or use any Service or Content for the benefit of anyone other than Customer, unless expressly stated otherwise in an Order Form or the Documentation, (b) sell, resell, license, sublicense, distribute, make available, rent or lease any Service or Content, or include any Service or Content in a service bureau or outsourcing offering, (c) use any Service or Non-Agility Application to facilitate unlawful, hateful, discriminatory, or violent causes, (d) use any Service or Non-Agility Application to store or transmit Malicious Code, (e) interfere with or disrupt the integrity or performance of any Service or third-party data contained therein, (f) attempt to gain unauthorized access to any Service or Content or its related systems or networks, (g) permit direct or indirect access to or use of any Service or Content in a way that circumvents a usage limit, or use any Service to access or use any Agility intellectual property except as permitted under this Agreement, an Order Form, or the Documentation, (h) modify, copy, or create derivative works based on any Service or any part, feature, function or user interface thereof, (i) copy Content except as permitted herein or in an Order Form or the Documentation, (j) frame or mirror any part of any Service or Content, other than framing on Customer's own intranets or otherwise for its own internal business purposes or as permitted in the Documentation, (k) except to the extent permitted by applicable law, disassemble, reverse-engineer, or decompile any Service or Content or access it to (1) build a competitive product or service, (2) build a product or service using similar ideas, features, functions or graphics of the Service, (3) copy any ideas, features, functions or graphics of the Service, or (4) determine whether the Service is within the scope of any patent, (l) use any Service to generate or facilitate unsolicited commercial email (spam), SMS, MMS, or other text messages or push notifications in violation of any applicable laws including anti- spam, telemarketing, or telephone consumer protection laws or regulations, or industry codes of good conduct, (m) use any Service to conduct multi-level marketing, such as pyramid schemes and the like, (n) use any Service to impersonate another person, entity, or Agility (via the use of an email address or otherwise) or otherwise misrepresent themselves or the source of any communication, (o) use any Service to sell, distribute, or export harmful, dangerous or illegal products or substances, prescription drugs or other controlled substances or related paraphernalia, (p) perform significant load or security testing on any Service without first obtaining Agility’s written consent, (q) use any Service in a manner that would disparage Agility, or (r) remove any copyright, trademark, or other proprietary rights notices contained in or on any Service or Content or an Agility website or reformat or frame any portion of the web pages that are part of any Service’s display. 

Prohibited Material. Customer will not and will not allow any third party including its Users to use any Service to display, store, process, or transmit (1) material that infringes or misappropriates a third party’s intellectual property or proprietary rights, (2) hate-related or violent material, and/or material advocating discrimination against individuals or groups, (3) infringing, unlawful, tortious, defamatory, harassing, abusive, fraudulent, obscene, excessively profane, hateful, violent, or otherwise objectionable material, (4) material advocating or advancing criminal hacking, cracking, or phishing, (5) material related to illegal drugs or paraphernalia, (6) malicious material, (6) unlawful software, (7) malicious code, such as viruses, worms, time bombs, Trojan horses, and other harmful or malicious files, scripts, agents, or programs, (8) material that violates, encourages, or furthers conduct that would violate any applicable laws, including any criminal laws, or any third-party rights, including publicity or privacy rights, or (9) material that may be harmful to minors. 

 

3.6  Removal of Content and Non-Agility Applications. If Customer receives notice that Content, Customer Data or a Non-Agility Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, or this Agreement, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Agility’s judgment continued violation is likely to reoccur, Agility may disable the applicable Service, Content, Customer Data and/or Non-Agility Application. If requested by Agility, Customer shall confirm such deletion and discontinuance of use in writing and Agility shall be authorized to provide a copy of such confirmation to any such third party claimant or governmental authority, as applicable. In addition, if Agility is required by any third party rights holder to remove Content or Customer Data, or receives information that Content provided to Customer, or that Customer Data or Customer’s use of any Service may violate applicable law or third-party rights, Agility may without prior notice discontinue Customer’s access to the Service or to such Content or Customer Data through the Service.  

 

3.7  Customer Terms of Service and Privacy Policy. Customer is responsible for maintaining and publishing, on any website it publishes, maintains or manages using the Services, end user terms of service and a privacy policy that comply with all applicable laws.  

 

3.8 Prohibited Uses.  The Services may not be accessed for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.  Agility’s direct competitors are prohibited from accessing the Services, except with Agility’s prior written consent.  

 

4: NON-AGILITYPRODUCTS AND SERVICES 

4.1 Non-Agility Products and Services. Agility or third parties may make available third-party products or services for use with the Services, including, for example, Non-Agility Applications and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any Non-Agility provider, product or service is solely between Customer and the applicable Non-Agility provider. Agility does not warrant or support Non-Agility Applications or other Non-Agility products or services, whether or not they are designated by Agility as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Agility is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Non-Agility Application or its provider.  

 

4.2 Integration with Non-Agility Applications. The Services may contain features designed to interoperate with Non-Agility Applications. Agility cannot guarantee the continued availability of such Service 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 Non-Agility Application ceases to make the Non-Agility Application available for interoperation with the corresponding Service features in a manner acceptable to Agility.  

 

5: FEES AND PAYMENT 

5.1  Fees. Customer will pay all fees specified in Order Forms. Except as otherwise specified herein or in an Order Form, (i) fees are based on subscriptions purchased and not actual usage, (ii) payment obligations are non-cancelable and fees paid are non-refundable, and (iii) quantities purchased cannot be decreased during the relevant subscription term.  

 

5.2  Invoicing and Payment. Customer will provide Agility with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Agility. If Customer provides credit card information to Agility, Customer authorizes Agility to charge such credit card for all Purchased Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in the “Term of Purchased Subscriptions” section below. Such charges shall be made in advance, either annually or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Agility will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for providing complete and accurate billing and contact information to Agility and notifying Agility of any changes to such information.  

 

5.3  Overdue Charges. If any invoiced amount is not received by Agility by the due date, then without limiting Agility’s rights or remedies, (a) those charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, and/or (b) Agility may condition future subscription renewals and Order Forms on payment terms shorter than those specified in the “Invoicing and Payment” section above.  

 

5.4  Suspension of Service and Acceleration. If any charge owing by Customer under this Agreement is 30 days or more overdue, (or 10 or more days overdue in the case of amounts Customer has authorized Agility to charge to Customer’s credit card), Agility may, without limiting its other rights and remedies, accelerate Customer’s unpaid fee obligations under this Agreement so that all such obligations become immediately due and payable, and suspend all or any Services and Customer and Users’ access to such Services until such amounts are paid in full, provided that, other than for customers paying by credit card or direct debit whose payment has been declined, Agility will give Customer at least 10 days’ prior notice that its account is overdue, in accordance with the “Manner of Giving Notice” section below for billing notices, before suspending services.  

 

5.5  Payment Disputes. Agility will not exercise its rights under the “Overdue Charges” or “Suspension of Service and Acceleration” section above if Customer is disputing the applicable charges reasonably and in good faith and is cooperating diligently to resolve the dispute.  

 

5.6  Taxes. Agility's fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, HST, value-added, sales, use or withholding taxes, assessable by any jurisdiction whatsoever (collectively, “Taxes”). Customer is responsible for paying all Taxes associated with its purchases hereunder. If Agility has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, Agility will invoice Customer and Customer will pay that amount unless Customer provides Agility with a valid tax exemption certificate authorized by the appropriate taxing authority.  

 

6: PROPRIETARY RIGHTS AND LICENSES 

6.1  Reservation of Rights. Subject to the limited rights expressly granted hereunder, Agility and its licensors reserve all of their right, title and interest in and to the Services and Content, including all of their related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.  

 

6.2  Access to and Use of the Services and the Content. Customer has the right to access and use applicable Services and applicable Content subject to the terms of applicable Order Forms, this Agreement and the Documentation.  

 

6.3  License by Customer to Agility. Customer grants Agility and its applicable contractors a worldwide, limited-term license to host, copy, use, transmit, and display any Non-Agility Applications and program code created by or for Customer using a Service or for use by Customer with the Services, and Customer Data, each as appropriate for Agility to provide and ensure proper operation of the Services and associated systems in accordance with this Agreement. If Customer chooses to use a Non-Agility Application with a Service, Customer grants Agility permission to allow the Non-Agility Application and its provider to access Customer Data and information about Customer’s usage of the Non-Agility Application as appropriate for the interoperation of that Non-Agility Application with the Service. Subject to the limited licenses granted herein, Agility acquires no right, title or interest from Customer or its licensors under this Agreement in or to any Customer Data, Non-Agility Application or such program code. Customer represents, warrants and covenants to Agility that Customer has all right, title and interests necessary to grant such licenses and has obtained any consents required to provide to Agility any personal information included in the Customer Data for Agility’s use as contemplated in this Agreement. 

 

6.4  License by Customer to Use Feedback. Customer grants to Agility a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Users relating to the operation of Agility’s services.  

 

7 CONFIDENTIALITY 

7.1  Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Confidential Information of Customer includes Customer Data; Confidential Information of Agility includes the Services and Content, and the pricing terms and conditions of all Order Forms. Confidential Information of each party includes business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by such party. However, Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party. For the avoidance of doubt, the non-disclosure obligations set forth in this “Confidentiality” section apply to Confidential Information exchanged between the parties in connection with Customer’s evaluation of additional Services.  

 

7.2  Protection of Confidential Information. As between the parties, each party retains all ownership rights in and to its Confidential Information. The Receiving Party will use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care) to (i) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement and (ii) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections not materially less protective of the Confidential Information than those herein.  Neither party will disclose the terms of this Agreement or any Order Form to any third party other than its legal counsel and accountants without the other party’s prior written consent, provided that a party that makes any such disclosure to its legal counsel or accountants will remain responsible for such legal counsel’s or accountant’s compliance with this “Confidentiality” section. Notwithstanding the foregoing, Agility may disclose the terms of this Agreement and any applicable Order Form to a subcontractor or Non-Agility Application Provider to the extent necessary to perform Agility’s obligations under this Agreement, and to any person or entity investing in, lending to or acquiring Agility or the assets used in its business, or performing a due diligence investigation for such a transaction, under terms of confidentiality materially as protective as set forth herein.  

 

7.3  Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of the compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to that Confidential Information.  

 

8: REPRESENTATIONS, WARRANTIES, EXCLUSIVE REMEDIES AND DISCLAIMERS 

8.1  Representations. Each party represents that it has validly entered into this Agreement and has the legal power to do so.  

 

8.2  Agility Warranties. Agility warrants that during an applicable subscription term (a) this Agreement, the Order Forms and the Documentation will accurately describe the applicable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Customer Data, (b) Agility will not materially decrease the overall security of the Services, (c) the Services will perform materially in accordance with the applicable Documentation, and (d) subject to the “Integration with Non-Agility Applications” section above, Agility will not materially decrease the overall functionality of the Services. For any breach of a warranty above, Customer’s exclusive remedies are those described in the “Termination” and “Refund or Payment upon Termination” sections below.  

 

8.3 Disclaimers. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. CONTENT IS PROVIDED “AS IS,” AND AS AVAILABLE EXCLUSIVE OF ANY WARRANTY WHATSOEVER.  

 

9: MUTUAL INDEMNIFICATION 

9.1  Indemnification by Agility. Agility will defend Customer against any claim, demand, suit or proceeding made or brought against Customer by a third party alleging that any Purchased Service infringes or misappropriates such third party’s intellectual property rights (a “Claim Against Customer”), and will indemnify Customer from any damages, attorney fees and costs finally awarded against Customer as a result of, or for amounts paid by Customer under a settlement approved by Agility in writing of, a Claim Against Customer, provided Customer (a) promptly gives Agility written notice of the Claim Against Customer, (b) gives Agility sole control of the defense and settlement of the Claim Against Customer (except that Agility may not settle any Claim Against Customer unless it unconditionally releases Customer of all liability), and (c) gives Agility all reasonable assistance, at Agility’s expense. If Agility receives information about an infringement or misappropriation claim related to a Service, Agility may in its discretion and at no cost to Customer (i) modify the Services so that they are no longer claimed to infringe or misappropriate, without breaching Agility’s warranties under “Agility Warranties” above, (ii) obtain a license for Customer’s continued use of that Service in accordance with this Agreement, or (iii) terminate Customer’s subscriptions for that Service upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply (1) if the allegation does not state with specificity that the Services are the basis of the Claim Against Customer; (2) if a Claim Against Customer arises from the use or combination of the Services or any part thereof with software, hardware, data, or processes not provided by Agility, if the Services or use thereof would not infringe without such combination; (3) if a Claim Against Customer arises from Services under an Order Form for which there is no charge; (4) if a Claim against Customer arises from Content, a Non-Agility Application or Customer’s breach of this Agreement, the Documentation or applicable Order Forms; (5) to any Claim of patent infringement arising from or related to a website published, maintained or managed by Customer using the Services if the Claim relates to features or functionality that (X) were requested by Customer or included in such website by Customer; or (Y) were at the applicable times in common use in the internet generally; or (6) to any Claim of trade mark infringement arising from or related to branding, design or logo elements published or provided by Customer.  

 

9.2  Indemnification by Customer. Customer will defend Agility against any claim, demand, suit or proceeding made or brought against Agility by a third party alleging (a) that any Customer Data or Customer’s use of Customer Data with the Services, (b) a Non-Agility Application provided by Customer, or (c) the combination of a Non-Agility Application provided by Customer and used with the Services, infringes or misappropriates such third party’s intellectual property rights, or arising from Customer’s use of the Services or Content in an unlawful manner or in violation of  this Agreement or the Documentation (each a “Claim Against Agility”), and will indemnify Agility from any damages, attorney fees and costs finally awarded against Agility as a result of, or for any amounts paid by Agility under a settlement approved by Customer in writing of, a Claim Against Agility, provided Agility (a) promptly gives Customer written notice of the Claim Against Agility, (b) gives Customer sole control of the defense and settlement of the Claim Against Agility (except that Customer may not settle any Claim Against Agility unless it unconditionally releases Agility of all liability), and (c) gives Customer all reasonable assistance, at Customer’s expense. The above defense and indemnification obligations do not apply if a Claim Against Agility arises from Agility’s breach of this Agreement, the Documentation or applicable Order Forms.  

 

9.3  Exclusive Remedy. This “Mutual Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third party claim described in this section.  

 

10: LIMITATION OF LIABILITY; INSURANCE

10.1  Limitation of Liability. IN NO EVENT SHALL AGILITY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING UNDER ANY INDEMNITY) EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER HEREUNDER FOR THE SERVICES GIVING RISE TO THE LIABILITY IN THE TWELVE MONTHS PRECEDING THE FIRST INCIDENT OUT OF WHICH THE LIABILITY AROSE. THE FOREGOING LIMITATION WILL APPLY WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY.  

 

10.2  Exclusion of Consequential and Related Damages. IN NO EVENT WILL AGILITY HAVE ANY LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT FOR ANY LOST PROFITS, REVENUES, GOODWILL, OR INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, BUSINESS INTERRUPTION, AGGRAVATED OR PUNITIVE DAMAGES, WHETHER AN ACTION IS IN CONTRACT OR TORT (INCLUDING NEGLIGENCE) AND REGARDLESS OF THE THEORY OF LIABILITY, EVEN IF AGILITY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR IF CUSTOMER’S REMEDY OTHERWISE FAILS OF ITS ESSENTIAL PURPOSE.  

 

10.3 Insurance.  Agility shall during the terms of any subscriptions hereunder maintain reasonable insurance related to the Services, including, without limitation, comprehensive general liability insurance and errors and omissions insurance. 

 

11: TERM AND TERMINATION 

11.1  Term of Agreement. This Agreement commences on the date Customer first accepts it and continues until all subscriptions hereunder have expired or have been terminated.  

 

11.2  Term of Purchased Subscriptions. The term of each subscription shall be as specified in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions will automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other written notice (email acceptable) at least 90 days before the end of the relevant subscription term. Except as expressly provided in the applicable Order Form, renewal of promotional or one-time priced subscriptions will be at Agility’s applicable list price in effect at the time of the applicable renewal. Notwithstanding anything to the contrary, any renewal in which subscription volume or subscription length for any Services has decreased from the prior term will result in re-pricing at renewal without regard to the prior term’s per-unit pricing.  

 

11.3  Termination. A party may terminate this Agreement for cause (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.  

 

11.4  Refund or Payment upon Termination. If this Agreement is terminated by Customer in accordance with the “Termination” section above, Agility will refund Customer any prepaid fees covering the remainder of the term of all Order Forms after the effective date of termination. If this Agreement is terminated by Agility in accordance with the “Termination” section above, Customer will pay any unpaid fees covering the remainder of the term of all Order Forms. In no event will termination relieve Customer of its obligation to pay any fees payable to Agility for the period prior to the effective date of termination.  

 

11.5  Surviving Provisions. The sections titled “Free Services,” “Fees and Payment,” “Proprietary Rights and Licenses,” “Confidentiality,” “Disclaimers,” “Mutual Indemnification,” “Limitation of Liability; Insurance,” “Refund or Payment upon Termination,” “Removal of Content and Non-Agility Applications,” “Surviving Provisions” and “General Provisions” will survive any termination or expiration of this Agreement, and the section titled “Protection of Customer Data” will survive any termination or expiration of this Agreement for so long as Agility retains possession of Customer Data.  

 

12: GENERAL PROVISIONS 

12.1  Entire Agreement and Order of Precedence. This Agreement is the entire agreement between Agility and Customer regarding Customer’s use of Services and Content and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. The parties agree that any term or condition stated in a Customer purchase order or in any other Customer order documentation (excluding Order Forms) is void. In the event of any conflict or inconsistency among the following documents, the order of precedence shall be: (1) the applicable Order Form, (2) this Agreement, and (3) the Documentation. Titles and headings of sections of this Agreement are for convenience only and shall not affect the construction of any provision of this Agreement.  

 

12.2  Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.  

 

12.3  Third-Party Beneficiaries. There are no third-party beneficiaries under this Agreement.  

 

12.4  Waiver. No failure or delay by either party in exercising any right under this Agreement will constitute a waiver of that right.  

 

12.5  Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign and transfer its rights and obligations under this Agreement in their entirety (including under all Order Forms), without the other party’s consent, to its affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Notwithstanding the foregoing, if a party is acquired by, sells substantially all of its assets to, or undergoes a change of control in favor of, a direct competitor of the other party, then such other party may terminate this Agreement upon written notice. In the event of such a termination, Agility will refund Customer any prepaid fees covering the remainder of the term of all subscriptions for the period after the effective date of such termination. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.  

 

12.6 Software Development Services.  Any development of software or other intellectual property that Agility performs for Customer in connection with the Services shall be subject to this Agreement unless the parties enter into a separate agreement for that purpose.  All software, code, scripts and other materials, and all intellectual property rights therein, developed by Agility in connection with the Services are the property of Agility and Customer’s only rights to them are the rights granted in this Agreement.   

 

12.7 Notices. The address to which Agility should direct notices under this Agreement is set in the Order Form. Agility’s address for notices under this Agreement is: 

Agility Inc.  

2967 Dundas Street West #695 

Toronto, ON M6P 1Z2  

Email: finance@agilitycms.com 

Such addresses may be changed by notice given in accordance with this Section.  Except as otherwise specified in this Agreement, all notices related to this Agreement will be in writing and will be effective upon (a) personal delivery, (b) the second business day after mailing, or (c) the day of sending by email, provided that (d) a notice from Customer of termination shall not become effective until it is acknowledged in writing (including by email) by Agility, and (e) notices of breach of this Agreement or an indemnifiable claim (“Legal Notices”), which shall clearly be identifiable as Legal Notices, may not be given by email.  

 

12.8 Governing Law, Venue and Language. This Agreement shall be governed by the laws of the Province of Ontario, and any dispute under this Agreement shall be subject to the exclusive jurisdiction of the Courts of the Province of Ontario in the City of Toronto. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais. 

 

12.9 Amendment.  The terms and conditions of this Master Subscription Agreement may be amended unilaterally by Agility on email notice to you, or by the posting by Agility of a conspicuous notice within the Service, provided that any material change of this Master Subscription Agreement, including any change that materially increases Customer’s obligations or liability under this Agreement, shall require Customer’s prior written consent.  Any such amendment becomes effective upon the stated date.  No other amendment may otherwise be made to this Agreement without each party’s prior written consent. 

EXHIBIT “A”

AGILITY DATA PROCESSING ADDENDUM

This Agility Data Processing Addendum (“Addendum”) amends the Agility Master Subscription Agreement (the “Agreement”) by and between Customer and Agility Inc., an Ontario corporation with offices at 2967 Dundas Street West #695, Toronto ON, M6P 1Z2.

 

1.Definitions

“Data Protection Legislation” means European Union Regulation 2016/679 and any legislation and/or regulation implementing or made pursuant to it, or which amends or replaces any of it (the “General Data Protection Regulation”) or California Civil Code Section 1798.100-1798.199 and any legislation and/or regulation implementing or made pursuant to it, or which amends or replaces any of it (the “California Consumer Privacy Act of 2018”), as applicable;

“Data Processor”, “Data Controller”, “Data Subject”, “Processing”, “Subprocessor”, and “Supervisory Authority” shall be interpreted in accordance with the General Data Protection Regulation; 

“Data Subject Request” as used in this Addendum means a request for access, erasure, rectification, or portability of an End User’s Personal Data; and 

“Personal Data” as used in this Addendum means information that relates to, or could reasonably be linked with, to an identifiable or identified Data Subject who visits or engages in transactions through Customer’s website (an “End User”), which Agility Processes as a Data Processor or Service Provider in the course of providing Customer with the Services; 

“Service Provider” shall be interpreted in accordance with the California Consumer Privacy Act of 2018; 

All other capitalized terms in this Addendum shall have the same definition as in the Agreement.

2. Data Protection

a. Where a Data Subject is located in the European Economic Area, that Data Subject’s Personal Data may be Processed by Agility and in that regard may be transferred to other regions, including to Canada and the United States. Such transfers will be completed in compliance with relevant Data Protection Legislation.

b. When Agility Processes Personal Data in the course of providing the Services, Agility will:

    • Process the Personal Data as a Data Processor and/or Service Provider, only for the purpose of providing the Services in accordance with documented instructions from Customer (provided that such instructions are commensurate with the functionalities of the Services), and as may subsequently be agreed to by Customer. If Agility is required by law to Process the Personal Data for any other purpose, Agility will provide Customer with prior notice of this requirement, unless Agility is prohibited by law from providing such notice;
    • notify Customer if, in Agility’s opinion, Customer’s instruction for the Processing of Personal Data infringes applicable Data Protection Legislation;
    • notify Customer promptly, to the extent permitted by law, upon receiving an inquiry or complaint from a Supervisory Authority relating to Agility’s Processing of the Personal Data;
    • implement reasonable technical and organizational measures enabling Customer to execute Data Subject Requests that Customer is obligated to fulfil;
    • implement and maintain appropriate technical and organizational measures to protect the Personal Data against unauthorized or unlawful processing and against accidental loss, destruction, damage, theft, alteration or disclosure. These measures shall be appropriate to the harm which might result from any unauthorized or unlawful processing, accidental loss, destruction, damage or theft of Personal Data and appropriate to the nature of the Personal Data which is to be protected;
    • upon request, provide reasonable information to help the End User complete the End User’s data protection impact assessments.
    • provide Customer, upon request, with up-to-date attestations, reports or extracts thereof where available from a source charged with auditing Agility’s data protection practices (e.g. external auditors, internal audit, data protection auditors), or suitable certifications, to enable Customer to assess compliance with the terms of this Addendum;
    • notify Customer without undue delay upon becoming aware of and confirming any accidental, unauthorized, or unlawful processing of, disclosure of, or access to the Personal Data;
    • ensure that its personnel who access the Personal Data are subject to confidentiality obligations that restrict their ability to disclose the End User Personal Data; and
    • upon termination of the Agreement, Agility will timely initiate its purge process to delete or anonymize the Personal Data.

c. In the course of providing the Services, Customer acknowledges and agrees that Agility may use Subprocessors to Process the Personal Data. Agility’s use of any specific Subprocessor to process the Personal Data must be in compliance with Data Protection Legislation and must be governed by a contract between Agility and Subprocessor that requires comparable protections to this Data Processing Addendum.

3. Miscellaneous

a. In the event of any conflict or inconsistency between the provisions of the Agreement and this Addendum, the provisions of this Addendum shall prevail. For avoidance of doubt and to the extent allowed by applicable law, any and all liability under this Addendum, including limitations thereof, will be governed by the relevant provisions of the Agreement. Customer acknowledges and agrees that Agility may amend this Addendum from time to time by posting the relevant amended and restated Addendum on Agility’s website or by providing a copy thereof to Customer, and such amendments to the Addendum are effective as of the date of posting or if delivered on the effective date stated thereon. Customer’s continued use of the Services after the amended Addendum is effective constitutes Customer’s agreement to, and acceptance of, the amended Addendum.

b. Save as specifically modified and amended in this Addendum, all of the terms, provisions and requirements contained in the Agreement shall remain in full force and effect and govern this Addendum. If any provision of the Addendum is held illegal or unenforceable in a judicial proceeding, such provision shall be severed and shall be inoperative, and the remainder of this Addendum shall remain operative and binding on the parties.

c. The terms of this Addendum shall be governed by the laws of the Province of Ontario and the laws of Canada applicable therein, and any dispute under this Addendum shall be subject to the exclusive jurisdiction of the Courts of the Province of Ontario in the City of Toronto. Les parties reconnaissent avoir convenue que la présente convention ainsi que tous documents, avis et procédures judiciaires qui pourront être exécutés, donnés ou intentées à la suite des présentes ou ayant un rapport, direct ou indirect, avec la présente convention soient rédigée en anglais.