Caddie Software Inc (“Provider”) has developed a software-as-a-service (“SaaS”) product offered as a platform (the “Caddie Platform”), which provides management and sales enablement tools for companies’ internal sales teams accessible to Customer (as defined below) and its Users through the Provider website at https://www.trycaddie.com (the “Website”, together with the Caddie Platform, the “Service”). The Service is provided on a subscription basis as further described in this Agreement and on the Website under specific subscription plans offered by Provider from time to time. This Agreement applies to anyone (“You”/”Customer”) who subscribes for or otherwise uses the Service. On execution by each Party of the Order Form, during the Term (as defined below), Provider will provide Customer with access to the Service. In order to access and use the Service, Customer is responsible at its own expense for obtaining its own Internet access and any hardware and software required therefor. Customer’s right to use the Service during the Subscription Term shall be subject to and in accordance with any additional conditions, restrictions or parameters specified in the Order Form(s).
THESE TERMS (WHICH TOGETHER WITH ANY ONLINE ORDER PROCESS OR ORDER FORM OFFERED BY PROVIDER THROUGH THE WEBSITE WHICH INCORPORATE THESE TERMS BY REFERENCE OR ANY OTHER AGREEMENT PURSUANT TO WHICH YOU USE OR REQUEST THE SERVICE (“ORDER FORM”) ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICE. ACCORDINGLY, YOU SHOULD READ THESE TERMS CAREFULLY BEFORE USING THE SERVICE. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THESE TERMS, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY’S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICE.
1. Term. This Agreement commences as of the Effective Date and shall continue in effect for the term indicated on the Order Form (“Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed, on a monthly basis, on the anniversary of the Effective Date this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof (the “Initial Term”, and any “Renewal Term”, together with the “Term”). A Party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party 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.
2. Grant of Rights. Subject to the terms of this Agreement including payment of the applicable fees for Service set out in the Order Form (“Subscription Fees”), Caddie hereby grants to Customer, a non-exclusive, non-transferable, non-sublicensable (except to Customer Personnel), limited internal license to access and use during the Term the Caddie Platform, the Website, their features, and functionality (all of which are included in the Service), and Documentation (if any) for the duration of the Term. Customer and any authorized director, officer, employee, or contractor under the employ or other engagement of the Customer (“Customer Personnel”) shall access and use the Service solely for internal business purposes. Caddie will grant one general administrator account (“Administrator Account”) to an individual of Customer’s Personnel authorized by Customer to act as its administrator (“Administrator”). The Administrator will be able to create user logins for Customer’s Personnel authorized to use the Service. All rights not expressly granted to Customer are reserved by Provider and its licensors. There are no implied rights.
3. Restrictions. Customer shall not and shall not permit anyone to, directly or indirectly, (i) modify, translate, adapt, disassemble, reverse assemble or engineer, reverse compile or decompile, or otherwise attempt to discover or derive the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service and/or any User Guide or Documentation (except to the extent expressly permitted by Caddie or authorized within the Service); (ii) copy, sublicense, distribute, assign, re-license, sell, lease, transfer, or otherwise use the Service for time-sharing or otherwise for the benefit of a third-party; (iii) circumvent any user limits or other timing or use restrictions that are built into the Service; (iv) frame or mirror any content forming part of the Service; (v) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (vi) use the Service to send or store means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs (“Malicious Code”); (vii) have access to the Service to interfere with or disrupt the integrity or performance of the Service or the data contained therein; (viii) (a) build a competitive offering or product, and/or (b) copy any ideas, features, functions or graphics of the Service; and/or (ix) remove any identifying marks, logos, labels, or other proprietary notice from the Service.
4. Data License. Customer grants to Caddie a non-exclusive, worldwide, royalty-free fully paid-up license to access, collect, use, analyze, store and process any information, materials, and any content transmitted to the Service by Customer, Customer’s Personnel, and Customer’s end users (“Customer Data”) solely to: (i) provide the Service to Customer; (ii) evaluate and improve the functions, features and operation of the Service; and (iii) to create anonymized and aggregated data sets (“Service Usage Data”). To the extent that any Customer Data or information transmitted to and collected by the Service, includes personal information, Caddie will treat such information as confidential in accordance with the requirements of Section 9 below. part of this Agreement. Customer Data expressly excludes any Feedback (defined below) provided by Customer to Caddie or transmitted thereby to the Service, which such Feedback shall be owned exclusively by Caddie on the terms set out in Section 5.
5. Feedback. Customer may from time to time provide to Caddie reasonable feedback with respect to the Service, including without limitation information on usability and evaluation of the Service and Documentation (“Feedback”). Customer agrees that any such Feedback, as well as any other know-how, developments, improvements, or data concerning the Service that Customer may suggest or provide to Caddie (collectively, “Improvements”) will be the sole property of Caddie and may be used by Caddie for any purposes Caddie sees fit.
6. Proprietary Rights. As between Caddie and Customer, Customer owns all right, title and interest in and to Customer Data. All Intellectual Property Rights in and to the Service, Service Usage Data and Documentation shall, at all times, remain exclusively with Caddie and its licensors. Customer shall acquire no right whatsoever to all or any part of the Service except the right to use the Service in accordance with the terms of this Agreement and Caddie and its licensors reserve all rights not expressly granted to Customer. As used herein: (i) “Documentation” means, any written or electronic technical documentation, including user manuals, reference materials and/or release notes (if any) that is made available with the Service, and which may be updated and amended from time to time; and (ii) “Intellectual Property Rights” means, all proprietary rights in and to Documentation, patents, trademarks, tradenames, trade dress, trade secrets, authorship (including the Documentation, expressions, designs, copyrights and copyrightable works, software and firmware, application programming interfaces, architecture, files, records, schematics, data, data files, and databases and other specifications and documentation, all industrial and other intellectual property rights, and all modifications, translations or adaptations, improvements or developments in and of the foregoing, and all rights, interests, and protections that are associated with, equivalent or similar to, or required for the exercise of, any of the foregoing, however arising, in each case whether registered or unregistered, all registrations, rights to register or apply for registration, renewals, reversions, all waivers and assignments of moral rights, all assignments of model and property releases, and all rights to enforce such rights or interest, in any work, including without limitation, the structure, sequence and organization of the same, worldwide and in perpetuity.
7. Customer Obligations. Customer agrees to: (i) comply and cause Customer Personnel to comply with its confidentiality obligations, and all other obligations set out in this Subscription Agreement; (ii be solely responsible and liable at all times for all activities that occur in and on its Administrator Account and any User accounts derived from its Administrator Account; (iii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (iv) use commercially reasonable efforts to prevent unauthorized access to, or use of the Service, and notify Caddie promptly of any such unauthorized access or use; and (v) use the Service as it is intended to be used solely for Customer’s internal purposes, and will comply with all applicable laws, statutes, constitution, principles of common law, rules, regulations, codes, acts, ordinances, orders, decrees, injunctions, by-laws, authorizations, directions, requirements, rulings, injunctions, agreements, and consents enacted, adopted, and/or in force by a court or governmental authority, body or department (“Applicable Law”).
8. Fees. Customer shall pay Caddie the Subscription Fees as specified in the Order Form for the number of users set out thereon. Unless otherwise stated on the Order Form, Subscription Fees will be invoiced quarterly or annually in advance. and payment is due net thirty (30) days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Caddie. Any payment not received from Customer by the due date may accrue, at Caddie’s discretion, late charges at the rate of 1.5% of the outstanding balance per month (19.57% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid. Unless otherwise stated, the Subscription Fees do not include any direct or indirect local, state, provincial, federal or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use, or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases pursuant to the Subscription Agreement, excluding taxes based on Caddie’s net income or property. If Caddie has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Caddie with a valid tax exemption certificate authorized by the appropriate taxing authority. Caddie shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with these Subscription Terms. If Customer’s account is thirty (30) days or more overdue, then in addition to any of its other rights or remedies, Caddie shall have the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full. At the end of the Initial Term or any Renewal Term, Caddie may change, in its sole discretion, any fees (including Subscription Fees), upon thirty (30) days prior written notice to Customer, and such revised prices shall become applicable to Customer at the start of the next Renewal Term.
9. Confidentiality. As used in this Section 9, “Confidential Information” shall mean and include information disclosed by Caddie or Customer (the “Disclosing Party”) to the other (the “Recipient”) during the term of the Agreement that is either (i) marked as confidential or (ii) disclosed orally and described as confidential at the time of disclosure and subsequently set forth in writing, marked confidential, and sent to the Recipient not more than thirty (30) days after the initial disclosure. Notwithstanding the foregoing, in no event shall the absence of such a mark or legend preclude disclosed information which would be considered confidential by someone exercising reasonable business judgment from being treated as Confidential Information. Confidential Information includes the Service(and the results of any testing or evaluation of the Service), Documentation, and any other related information furnished by Caddie to Customer, including, without limitation, all Intellectual Property Rights, information, pricing plans, know-how, product plans, technical information and specifications. The Disclosing Party agrees to keep confidential any and all Confidential Information of Recipient and shall take reasonable steps it takes to protect its own Confidential Information. Recipient shall only disclose such Confidential Information (i) to its Personnel, agents, or representatives who have a need to know such information, for the purpose of performing their obligations under this Agreement, and who have entered into confidentiality agreements and are bound by confidentiality obligations no less protective as this Agreement, or (ii) to the extent required by Applicable Law or during the course of or in connection with any litigation, arbitration or other proceeding based upon or in connection with the subject matter of this Agreement, provided that the Disclosing Party shall give the recipient reasonable notice prior to such disclosure and shall comply with any applicable protective order or equivalent. Confidential Information shall not include information which: (i) is or later becomes publicly available without breach of this Agreement, or is disclosed by the Disclosing Party without any obligation of confidentiality; (ii) is known to the Recipient at the time of disclosure by the Disclosing Party, (iii) is independently developed by the Recipient without use of Confidential Information, (iv) becomes known or available to the Recipient without restriction from a source having the lawful right to disclose such information; (v) is generally known or readily ascertainable by Parties of ordinary skill in the business of the Recipient; or (vi) is software code in either object code or source code form that is licensed under an open source license.
10. Mutual Indemnification.
a. Indemnification by Caddie. Subject to the terms and conditions of the Subscription Agreement, Caddie shall, at its own expense, defend Customer in any action, suit, or proceeding brought by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Caddie and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Caddie, (i) Customer shall notify Caddie promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Caddie sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Caddie in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Caddie’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
b. Mitigation. If (a) Caddie becomes aware of an actual or potential IP Claim, or (b) Customer provides Caddie with notice of an actual or potential IP Claim, Caddie may (or in the case of an injunction against Customer, shall), at Caddie’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate the provision of the Service and refund to Customer any pre-paid Subscription Fees for any periods after the termination of the Service, less any outstanding monies owed by Customer to Caddie.
c. Exclusions. The obligations in Sections 10(a) and 10(b) do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright, or other intellectual property right by the combination of the Service furnished by Caddie with other products, software or services not provided by Caddie; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in the Subscription Agreement.
d. Indemnification by Customer. Subject to the terms and conditions of the Subscription Agreement, Customer shall, at its own expense, defend Caddie, and its directors, officers, employees, and agents (the “Caddie Indemnitees”) in any action, suit, or proceeding brought by a third party against any of the Caddie Indemnitees alleging that the Customer Data, or Customer's use of the Service in violation of the Subscription Agreement, infringes or misappropriates the Intellectual Property Rights or other rights of, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Caddie Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Caddie Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Caddie shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Caddie shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Caddie shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Caddie shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
11. Warranties and Disclaimers. Each party represents, warrants to the other party that: (a) it is a corporation, duly organized, validly existing and in good standing under the laws of its jurisdiction of incorporation; (b) it has all requisite power and authority and approvals to execute, deliver and perform its obligations under this Agreement; (c) the execution and delivery of this Agreement and the performance of its obligations hereunder have been duly authorized by it and any necessary third parties; and (d) it will perform its duties and obligations hereunder in a careful, diligent, professional, proper, efficient and businesslike manner.
EXCEPT FOR THE EXPRESS WARRANTIES SET OUT ABOVE, THE SERVICE AND DOCUMENTATION (IF ANY) UNDER THIS AGREEMENT ARE PROVIDED “AS IS” AND ‘WHERE IS” AND CADDIE EXPRESSLY EXCLUDES AND DISCLAIMS ALL REPRESENTATIONS, WARRANTIES, OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation Of Liability. IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER FOR ANY LOSS OF PROFIT OR REVENUE BY THE OTHER, OR FOR ANY OTHER CONSEQUENTIAL, INCIDENTAL, INDIRECT OR ECONOMIC DAMAGES INCURRED OR SUFFERED BY THE OTHER PARTY ARISING AS A RESULT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF THE OTHER PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES. THE TOTAL LIABILITY OF CADDIE FOR ALL CLAIMS OF ANY KIND ARISING OUT OF OR RELATED TO THIS AGREEMENT, OR TO ANY ACT OR OMISSION OF CADDIE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, SHALL BY LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY CUSTOMER AND SHALL NOT EXCEED THE EQUIVALENT OF THE FEES PAID BY CUSTOMER TO CADDIE IN THE PREVIOUS SIX (6) MONTHS PRECEDING THE CLAIM. NOTWITHSTANDING THE GENERALITY OF THE FOREGOING, THE LIMITATIONS OF LIABILITY ABOVE DO NOT APPLY TO FRAUD, WILFUL MISCONDUCT OR INDEMNIFICAITON OBLIGATIONS UNDER SECTION 10.
13. Publicity. By executing this Agreement, Customer hereby agrees and consents to Caddie using the Customer’s name, logo, trademark on Caddie’s website and promotional marketing materials (digital or print), and press releases for the sole purpose of identifying and displaying Customer as a Customer of Caddie, and for marketing and promotional purposes thirty (30) days following Caddie’s onboarding of Customer as a Customer and user of the Service.
14. General Provisions.
a. Entire Agreement. This Agreement, including the Subscription Terms set out in this Schedule A, and the Order Form), and all other applicable schedules, exhibits, and addenda to this Agreement, constitutes the entire agreement between the Parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment, or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of these Subscription Terms, and the Order Form, or any schedule, exhibit, or addendum, the terms of the Order Form shall prevail.
b. Relationship. The Parties are independent contractors and nothing in this Agreement shall create, or be construed to create, an employment or agency relationship between Caddie and Customer.
c. Governing Law and Venue. The Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the Federal law applicable therein without giving effect to the conflicts of laws provisions of the province of Ontario or any other jurisdiction. To the extent the negotiations are not successful, any suit hereunder will be brought solely in the courts of competent jurisdiction sitting in Toronto, Ontario, and Customer hereby submits to the exclusive jurisdiction of such courts and waives all objections to such venue.
d. Waiver. The delay or failure of either Party to exercise any rights under this Agreement will not constitute, or be deemed to constitute, a waiver or forfeiture of such rights. No waiver shall be valid unless it is in writing and signed by the Party against whom such waiver is sought.
e. Assignment. The rights, duties, and privileges of a Party to this Agreement shall not be transferred or assigned by it, in whole or in part, without the prior written consent of the other Party. Notwithstanding the foregoing, Caddie will have the right to assign this agreement in connection with the sale of substantially all of its assets to a third party or in the event of a change of control.
f. Severability. In case any one or more of the provisions of this Agreement should be held invalid, illegal, or unenforceable, each such provision shall be modified, if possible, to the minimum extent necessary to make it valid and enforceable, or if it cannot be so modified, then severed, and the remaining provisions contained in this Agreement shall not in any way be affected or impaired.
g. No Third-Party Beneficiaries. Nothing herein shall confer, or be deemed to confer, on any person or entity not a signatory hereto any rights or benefits hereunder.
h. Headings. All headings contained in this Agreement are included as a matter of convenience and shall not be deemed part of such Agreement for purposes of interpretation.
i. Notices. All notices, demands, or other communications required or permitted to be given under this Agreement by either Party to the other may be effected either by personal delivery in writing or by email, (a) if to Caddie, addressed to Alan Nowogrodski at alan@trycaddie.com; or (b) if to Customer, to the email address set forth in the Order Form. Mailed notices shall be addressed to the other Party at the address appearing on the Order Form, but each Party may change such address by written notice to the other Party in accordance with the Order Form. Notices delivered personally will be deemed communicated as of actual receipt. Mailed notices will be deemed communicated as of three (3) days after mailing.
j. Language. The Parties have required that this Agreement and all documents and notices resulting from it be drawn up in English. Les parties aux présents ont exigés que la présente convention ainsi que tous les documents et avis qui s’y rattachent ou qui en découleront soient rédigés en anglais.
k. Force Majeure. Except with respect to the Customer’s payment obligations, neither Party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, epidemics or pandemics, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service Caddie or hosting facility failures or delays involving hardware, software or power systems not within a Party’s possession or reasonable control, provided that such Party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
l. Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States, and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import, or use of the Service.
m. Surviving Provisions. The following provisions of shall survive any termination or expiration of the Subscription Agreement: Sections 4-12; and this Section 14.