Terms

Terms and Conditions

These Terms and Conditions, including any attached exhibits, and the order which references these Terms and Conditions (“Order”) are made part of the Master Services Agreement (collectively, this “Agreement”) between Canary Technologies Corp. (“Canary”) and the customer identified in the Order (“Customer”). Canary and Customer may each be referred to herein as a “Party” and collectively as the “Parties.” The Parties enter into this Agreement as of the effective date set forth in the Order (the “Effective Date”).

1. Definitions

“Affiliate” of a Party means: (a) any entity that such Party controls; (b) any entity that controls such Party; or (c) any entity under common control with such Party. To “control,” for purposes of this definition, means owning or otherwise controlling more than 50% of the voting interests of an entity.

“Authorized User” means an employee or contractor of Customer who is authorized by Customer to access and use the Service on behalf of Customer, and who has been issued a Service account by Customer that is associated to a unique email address with a domain name owned or controlled by Customer.

“Customer Data” means all data, content, and information submitted by Authorized Users into the Service and the Customer-specific output that is generated by Authorized Users’ use of the Service.

“Documentation” means the user manuals, specifications, and policies, as may be updated from time to time, that describe the functionality, features, operation, or use of the Service and that are made available by Canary to Customer.

“Service” means Canary’s provision of its software-as-a-service platform that enables access to the specific services set forth in the Order (excluding Customer Data and Third Party Products and Content). References to the “Service” in this Agreement include the Documentation.

“Third Party Products and Content” means any applications, products, services, or content that interoperate with the Service and that are provided by Customer or a third party.

“Professional Services” means any professional services related to Customer’s use of the Service, such as consulting, implementation, or training services, provided by Canary to Customer as expressly identified in the Order.

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2. Canary Responsibilities

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1. Provision of the Service.  Subject to the terms and conditions of this Agreement and during the Term, Canary will: (a) make the Service available to Customer for use by Authorized Users solely for the internal business operations of Customer with respect to the specific properties identified on the Order; and (b) use commercially reasonable efforts to make the Service available 24 hours a day, 7 days a week, except for planned downtime of which, to the extent exceeding 10 continuous minutes, Canary uses reasonable efforts to give at least 48 hours’ advance notice to Customer via the Service. 
2. Updates and Upgrades.  The terms of this Agreement will also apply to updates and upgrades of the Service subsequently provided by Canary to Customer. Canary may update the functionality, user interfaces, usability, and Documentation from time to time in its sole discretion as part of its ongoing mission to improve the Service.   
3. Protection of Customer Data.  Canary will maintain commercially reasonable administrative, physical, and technical safeguards designed to prevent unauthorized access to or use of Customer Data. Before providing necessary access to Customer Data to a third party service provider, Canary will require such third party to maintain commercially reasonable data practices for maintaining the confidentiality and security of Customer Data.
4. Compliance with Laws.  Canary will comply with all laws applicable to Canary’s provisioning of the Service to its customers generally (i.e., without regard to the specific nature of the Customer Data or Customer’s particular use of the Service).
5. Support.  As part of the Service, Canary will provide Customer with Canary’s standard technical support, Documentation, and other online resources to assist Customer in its use of the Service.
6. Professional Services.  If Professional Services are purchased in the Order, Canary will provide to Customer such Professional Services in accordance with the Order. Unless stated otherwise in the Order, any timelines provided in connection with Professional Services are good faith projections and not guarantees.

3. Access to and Use of the Service

1. Account Creation and Subscriptions.  Customer must identify a primary Authorized User or group of Authorized Users who will be responsible for Customer’s master administrator account and for creating Authorized User accounts.  Authorized User accounts cannot be shared or used by more than one Authorized User.  Customer is responsible for maintaining the confidentiality of its logins, passwords, and accounts and for all activities that occur under Authorized User accounts.
2. Customer Responsibilities.  Customer will: (a) obtain any permissions and consents required for Authorized Users to access Customer Data in connection with the Service; (b) be responsible for Authorized Users’ compliance with this Agreement; (c) be responsible for the accuracy, appropriateness, and legality of Customer Data; (d) use commercially reasonable efforts to prevent unauthorized access to or use of the Service, and promptly notify Canary of any such unauthorized access or use; (e) use the Services only in accordance with applicable laws and government regulations.
3. Usage Restrictions.  Customer may not: (a) make the Service available to, or use the Service for the benefit of, anyone other than Customer and the Authorized Users; (b) upload, post, transmit, or otherwise make available to the Service any content that (i) is unlawful or tortious, or (ii) Customer does not have a right to make available under any applicable law or under contractual or fiduciary relationships, or that infringes, misappropriates, or otherwise violates any intellectual property, privacy, publicity, or other proprietary rights of any person; (c) sublicense, resell, time share, or similarly exploit the Service; (d) upload, post, transmit, or otherwise make available any content or information designed to interrupt, interfere with, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (e) reverse engineer, modify, adapt, or hack the Service, or otherwise attempt to gain unauthorized access to the Service or its related systems or networks; or (f) access the Service to build a competitive product or service.
4. Third Party Products and Content.  If Customer enables Third Party Products and Content for use with the Service: (a) any use by Customer or its Authorized Users of such Third Party Products and Content is solely the responsibility of Customer and the applicable provider; (b) Canary does not guarantee, warrant, or offer support for any such Third Party Products and Content; (c) Customer acknowledges that the providers of those Third Party Products and Content may have access to Customer Data in connection with the interoperation of the Third Party Products and Content with the Service, and Canary will not be responsible for any use, disclosure, modification or deletion of such Customer Data.‍

4. Fees

1. Fees, Invoicing, and Payment.  Customer will pay all fees specified in the Order in accordance with the payment schedule set forth therein. Payment obligations are non-cancelable and, except as expressly set forth herein, fees paid are non-refundable. If Customer has elected to pay fees with a credit card or PayPal account, Customer must provide Canary with a valid credit card (Visa, MasterCard, or any other issuer accepted by Canary) or PayPal account of a payment provider (each, a “Payment Provider”) as a condition to signing up for the Services.  Customer’s Payment Provider agreement governs Customer’s use of the designated credit card or PayPal account, and Customer must refer to that agreement, not this Agreement, to determine Customer’s rights and liabilities.  By providing Canary with Customer’s credit card number or PayPal account and associated payment information, Customer agrees that Canary is authorized to immediately invoice Customer for all fees and charges as they become due and payable in accordance with the applicable payment schedule, and that no additional notice or consent is required.  Customer agrees to immediately notify Canary of any change in Customer’s billing address or the credit card or PayPal account used for payment hereunder. If “Invoices” are chosen as the payment method on the Order, all fees will be invoiced by Canary in accordance with the terms set forth in the Order. Full payment for invoices issued must be received within thirty (30) days from Customer’s receipt of the invoice. If any fees owed by Customer (excluding amounts disputed in reasonable and good faith) have not been paid by the applicable due date, Canary reserves the right to apply a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, and be reimbursed for all reasonable expenses of collection
2. Taxes.  The fees are excusive of, and Customer will be solely responsible for, all applicable taxes in connection with this Agreement, including any sales, use, excise, value-added, goods and services, consumption, and other similar taxes or duties (but excluding taxes based on Canary’s net income). Should any payment for the services provided by Canary be subject to withholding tax by any taxing authority, Customer will reimburse Canary for such withholding tax. 
3. Automatic Renewal Fees.  Customer authorizes Canary to charge Customer’s Payment Provider in accordance with the payment schedule set forth in the Order.  If Canary does not receive payment from Customer’s Payment Provider: (a) Customer agrees to pay all such amounts on demand from Canary; and/or (b) Customer agrees that Canary may suspend Customer’s access to the Service until such amounts have been paid.

5. Proprietary Rights

1. Canary Property.  Subject to the limited rights expressly granted to Customer hereunder, Canary reserves and retains, and as between Canary and Customer, Canary exclusively owns, all rights, title, and interest in and to the Service, including all modifications, derivative works, upgrades, and updates thereto, and all related intellectual property rights therein. No rights are granted by Canary hereunder other than as expressly set forth herein. If Customer or any Authorized User provides Canary any feedback or suggestions regarding the Service, then Customer grants Canary an unlimited, irrevocable, perpetual, sublicensable, royalty-free license to use any such feedback or suggestions for any purpose without any obligation or compensation to Customer or any Authorized User. Unless otherwise set forth in the Order, Canary retains exclusive ownership of all work product created by Canary in connection with its performance of Professional Services.
2. Customer Data.  Customer grants to Canary and its Affiliates a worldwide, non-exclusive, limited term license to access, use, copy, distribute, perform, and display Customer Data, and provide necessary access to third party service providers acting on Canary’s behalf, such as Canary’s hosting services provider, only: (a) to provide, maintain, and update the Service; (b) to prevent or address service or technical problems or at Customer's request in connection with support matters; (c) as compelled by law; or (d) as expressly permitted in writing by Customer. Subject to the limited licenses granted herein, Canary acquires no right, title or interest under this Agreement in or to any Customer Data.
3. Analyses.  Notwithstanding anything to the contrary herein, Customer acknowledges and agrees that Canary may, during and after the Term, (i) compile statistical and other information related to the performance, operation, and use of the Service, and (ii) collect, use, and analyze information derived from Customer Data in aggregated and de-identified form (collectively “Analyses”), to create statistical analyses, to improve and enhance the Service, and for research and development purposes in connection with the Service or other Canary offerings. Canary retains all right, title, and interest, including all intellectual property rights, in and to Analyses. 

6. Confidentiality

1. Definition.  “Confidential Information” means all confidential 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, including all copies thereof. Confidential Information of Customer includes Customer Data, Confidential Information of Canary includes the Service (including its software and content, other than Customer Data) and the work product created from its performance of any Professional Services, and Confidential Information of each Party includes the terms of this Agreement. However, Confidential Information will not include any information that: (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party without use of or reliance on the Confidential Information of the Disclosing Party.
2. Protection.  The Receiving Party will: (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of the Receiving Party’s and its Affiliates’ employees, contractors, and agents who need such access for purposes consistent with this Agreement and who are subject to confidentiality obligations at least as restrictive as those herein. The Receiving Party will provide prompt written notice to the Disclosing Party of any unauthorized use or disclosure of the Disclosing Party’s Confidential Information. Upon request of the Disclosing Party during the Term, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
3. Compelled Disclosure.  The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's request and expense, if the Disclosing Party wishes to contest the disclosure.

7. Representations, Warranties, and Disclaimers

1. Mutual Representations.  Each Party represents that: (a) it is duly organized, validly existing, and in good standing under its jurisdiction of organization and has the right to enter into this Agreement; and (b) the execution, delivery, and performance of this Agreement are within the corporate powers of such Party and have been duly authorized by all necessary corporate action on the part of such Party, and constitute a valid and binding agreement of such Party.
2. Canary Warranties.  Canary warrants that: (a) the Service will perform materially in accordance with the applicable Documentation; (b) Canary will not materially decrease the functionality of the Service; and (c) Canary will perform Professional Services in a professional manner. If Canary breaches any of the foregoing warranties in this Section, Customer’s exclusive remedy and Canary’s sole liability will be the correction of the breach, or if Canary cannot substantially correct the breach within a commercially reasonable amount of time, Customer may terminate this Agreement and Canary will refund to Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination.
3. Customer Warranty.  Customer warrants that it has obtained and will maintain all rights, consents, and permissions necessary for Customer to make available the Customer Data to Canary for its use as contemplated herein.
4. Disclaimer.  EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED IN SECTION 7.2, THE SERVICE AND ALL RELATED COMPONENTS AND INFORMATION ARE PROVIDED ON AN “AS IS” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND CANARY EXPRESSLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. CANARY DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR-FREE.

8. Indemnification

1. Canary Indemnification.  Canary will defend Customer and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that Customer’s use of the Service as permitted hereunder infringes or misappropriates such third party’s intellectual property rights, and Canary will indemnify Customer and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Canary will have no liability under this Section to the extent any such lawsuit or proceeding arises from: (a) Customer Data or Third Party Products and Content; (b) Customer’s or any of its Affiliates’ or Authorized Users’ negligence, misconduct, or breach of this Agreement; or (c) any modification or combination of the Service that is not performed or approved by Canary or specifically set out in the Documentation.
2. Customer Indemnification.  Customer will defend Canary and its Affiliates from and against any lawsuit or proceeding brought by a third party to the extent alleging that any Customer Data infringes, misappropriates, or otherwise violates the rights, including privacy and publicity rights, of any other party, or that Customer’s or any Authorized User’s particular use of the Service violates applicable law, and Customer will indemnify Canary and its Affiliates for any damages and any reasonable attorneys’ fees finally awarded against them arising from such lawsuit or proceeding; provided, however, that Customer will have no liability under this Section to the extent any such lawsuit or proceeding arises from Canary’s or any of its Affiliates’ negligence, misconduct, or breach of this Agreement.
3. Procedures.  The indemnified party will provide the indemnifying party with: (a) prompt written notice of any matter that is subject to indemnification hereunder; (b) the right to assume the exclusive defense and control of any such matter (provided that the indemnified party may participate in the defense at its own expense); and (c) cooperation with any reasonable requests assisting the indemnifying party’s defense of such matter. The indemnifying party may not settle any such lawsuit or proceeding without the indemnified party’s prior written consent.
4. Exclusive Remedy.  This Section 8 states the indemnifying party’s sole liability, and the indemnified party’s exclusive remedy, for the claims described in this Section 8.

9. Limitation of Liability

1. Exclusion of Certain Damages.  IN NO EVENT WILL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY OR TO ANY OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER, OR PUNITIVE DAMAGES, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
2. Liability Cap.  EXCEPT FOR CUSTOMER’S LIABILITY FOR ITS PAYMENT OBLIGATIONS UNDER SECTION 4 OR A PARTY’S LIABILITY FOR ITS INDEMNIFICATION OBLIGATIONS UNDER SECTION 8, ITS BREACH OF ITS CONFIDENTIALITY OBLIGATIONS UNDER SECTION 6, OR FOR ITS WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY’S AGGREGATE LIABILITY RELATING TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY CUSTOMER TO CANARY HEREUNDER IN THE 12 MONTHS PRECEDING THE DATE ON WHICH THE FIRST CLAIM GIVING RISE TO LIABILITY AROSE.
3. Scope.  For the avoidance of doubt, the exclusions and limitations set forth in Section 9.1 and Section 9.2 will apply with respect to all legal theories of liability, whether in contract, tort, or otherwise.  The Parties agree that the exclusions and limitations set forth in Section 9.1 and Section 9.2 fairly allocate the risks between the Parties under this Agreement, and that they have relied on these exclusions and limitations in determining whether to enter into this Agreement.

10. Term, Termination, and Suspension

1. Term of the Agreement.  The term of this Agreement commences on the Effective Date and, unless earlier terminated in accordance with the terms of this Agreement, will continue for the “Initial Term” specified in the Order (the “Initial Term”). Thereafter, this Agreement will automatically renew for successive additional periods of 1 year each (each, a “Renewal Term”) unless either Party provides the other with written notice of non-renewal at least 30 days prior to the expiration of the Initial Term or the then-current Renewal Term. Customer agrees that Canary may modify the fees for each Renewal Term by providing Customer with written notice of such modification at least 60 days prior to the expiration of the Initial Term or the then-current Renewal Term, as applicable. The Initial Term and each Renewal Term, if any, are collectively referred to herein as the “Term.”
2. Suspension.  Canary may suspend Customer’s or any or all Authorized Users’ access to the Service, in whole in part, if: (a) Customer or any Authorized User is using the Service in violation of this Agreement or any applicable law; (b) Customer’s or any Authorized Users’ systems or accounts have been compromised or unlawfully accessed; (c) suspension of the Service is necessary, in Canary’s reasonable discretion, to protect the security of the Service or the infrastructure of Canary or its Affiliates; (d) suspension is required by applicable law; or (e) any fees owed by Customer (excluding amounts disputed in reasonable and good faith) are 30 days or more overdue, provided Canary has given Customer 10 or more days’ prior notice.
3. Termination for Cause.  Either Party may terminate this Agreement effective after 30 days’ written notice if the other Party materially breaches this Agreement and such breach is not cured within such 30-day period. Upon any termination for cause by Customer, Canary will promptly refund Customer any prepaid fees covering the period remaining in the Term after the effective date of such termination. Upon any termination for cause by Canary, Customer will promptly pay Canary any unpaid fees covering the period remaining in the Term after the effective date of such termination.
4. Effects of Termination.  In no event will any termination of this Agreement relieve Customer of its obligation to pay any fees payable to Canary for the period of time prior to the effective date of such termination. Upon any termination of this Agreement, Customer and all Authorized Users must immediately cease all use of the Service. For a period of 30 days following any termination of this Agreement, Canary will, upon Customer’s request, provide Customer with an export of all current Customer Data in the format agreed by the Parties. After such 30-day period, Canary will have no obligation to maintain or provide any Customer Data and Canary will, unless prohibited by applicable law, delete all Customer Data in its systems or otherwise in its possession or under its control in accordance with Canary’s then-current data retention and deletion policies.  Subject to this Section, upon any termination of this Agreement and the Disclosing Party’s request, the Receiving Party will promptly return, or at the Disclosing Party’s option destroy, any or all Confidential Information of the Disclosing Party in the Receiving Party’s possession or under its control.
5. Survival.  The sections titled “Protection of Customer Data,” “Fees,” “Proprietary Rights,” “Confidentiality,” “Indemnification,” “Limitation of Liability,” “Termination for Cause,” “Effects of Termination,” “Survival,” and “General Provisions” will survive any termination of this Agreement.

11. General Provisions

1. Attribution.  Customer agrees that Canary may use Customer’s name and logo to indicate that Customer is a customer of Canary for the Service on Canary’s website, marketing materials, and in communications with existing or prospective Canary customers. Any such attribution will be consistent with Customer’s style guidelines or requirements as communicated to Canary by Customer.
2. Force Majeure.  Except for payment obligations, neither Party will be liable hereunder by reason of any failure or delay in the performance of its obligations due to events beyond the reasonable control of such Party, which may include natural disasters, fires, epidemics, pandemics, riots, war, terrorism, denial of service attacks, internet outages, labor shortages, and judicial or government action.
3. Assignment.  Neither Party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other Party. Notwithstanding the foregoing, either Party may assign or transfer this Agreement in its entirety, without the consent of the other Party, in connection with a merger or sale of all or substantially all of its assets. Any purported assignment in violation of this Section will be null and void. This Agreement will bind and inure to the benefit of the Parties, their respective successors, and permitted assigns.
4. Governing Law; Venue.  This Agreement, and any disputes arising out of or related hereto, will be governed exclusively by the internal laws of the State of California, without regard to its conflicts of laws rules or the United Nations Convention on the International Sale of Goods. The state and federal courts located in San Francisco County, California will have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each Party hereby consents to the exclusive jurisdiction of such courts. Each Party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
5. Notices.  All notices under this Agreement will be in writing addressed to the Parties at the addresses set forth on the Order and will be deemed to have been duly given: (a) upon receipt if personally delivered or sent by certified or registered mail with return receipt requested; and (b) the first business day after sending by email or by next day delivery by a recognized overnight delivery service.
6. Relationship of the Parties; Third Party Beneficiaries.  The Parties are independent contractors and this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the Parties. There are no third party beneficiaries to this Agreement.
7. Waiver.  No failure or delay by either Party in exercising any right under this Agreement will constitute a waiver of that right.
8. Severability.  If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, such provision will be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement will remain in full force and effect.
9. Entire Agreement.  This Agreement, including any exhibits and other addenda hereto and all Orders, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning Customer’s purchase and use of the Service and any Professional Services. No modification, amendment, or waiver of any provision of this Agreement will be effective unless in writing and signed by each of the Parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or other addendum hereto or any Order, the terms of such addendum or Order will prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in any Customer purchase order or other Customer order documentation (excluding Orders) will be incorporated into or form any part of this Agreement, and all such terms or conditions will be null and void. As used herein, the words “include” and “including” shall be deemed to be followed by the words “without limitation.”

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