Last Revised – November 20, 2019
(For Customers or End Users of BriteSky’s Authorized Resellers)
BY ACCEPTING THIS AGREEMENT, EITHER BY (A) COMPLETING AND SUBMITTING TO BRITESKY TECHNOLOGIES INC. (“BRITESKY,” “US,” “OUR,” OR “WE”) AN ONLINE REGISTRATION FORM REFERENCING THIS AGREEMENT OR OTHERWISE INDICATING YOUR ACCEPTANCE OF AN ONLINE VERSION OF THIS AGREEMENT, (B) SIGNING AN ORDER FORM OR STATEMENT OF WORK THAT REFERENCES THIS AGREEMENT OR (C) REQUESTING A QUOTE FROM AN AUTHORIZED BRITESKY RESELLER THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY (E.G., YOUR EMPLOYER, PRINCIPAL OR CLIENT), YOU REPRESENT THAT YOU ARE AUTHORIZED TO DO SO (AND, AS USED HEREIN, THE TERMS “CLIENT,” “YOU” AND “YOUR” REFER TO YOU AND, IF APPLICABLE, ANY SUCH ENTITY).
IF YOU ARE NOT SO AUTHORIZED, OR IF YOU DISAGREE WITH ANY OF THE TERMS OF THIS AGREEMENT, YOU MUST NOT USE THE SERVICES PROVIDED IN CONNECTION WITH THIS AGREEMENT.
1. Scope of Agreement.This Agreement governs Your direct purchase and use, and BriteSky’s provisioning, of BriteSky’s cloud services, which may include the right to access and use third party products and/or services as part of an embedded solution (i.e. a combination of BriteSky services and third party products and/or services) (collectively, the “Services”). If Your use of the Services includes the right to access and use third party products and/or services, You acknowledge and accept the terms and conditions of all applicable third party end user agreements, available here: [Click Here]. For clarity, the Services, inclusive of all third party products and/or services, is licensed and not sold.
2. Grant of Service and Restrictions
2.1 You may use the Services solely for Your legitimate, internal business purposes.
2.2 You agree that the Services will not be used in a manner that: (i) violates, or facilitates the violation of, any applicable law, rule or regulation; (ii) violates, or facilitates the violation of, the rights of any third party, including, without limitation, the intellectual property or privacy rights of any third party; (iii) negatively affects BriteSky or its systems or networks; (iv) negatively affects a third party’s use and enjoyment of the Services or any other services provided by BriteSky; or (v) violates BriteSky’s Acceptable Use Policy, which can be found at www.britesky.ca/legal.
2.3 You also agree to fully cooperate with BriteSky and the Reseller (as applicable) in connection with their provisioning and Your use of the Services.
3. Client Responsibilities
3.1 Credentials. In no event will BriteSky be liable for any unauthorized use or misuse of Your username(s) or password(s).
3.2 Client Controls. BriteSky’s design of the Services assumes that certain controls will be implemented by You. In certain situations, the application of specific controls is necessary to achieve BriteSky’s control objectives. BriteSky may make control recommendations to You, as well as provide the means to implement these controls. BriteSky may also provide You with best practice guidance regarding control elements for which BriteSky is not responsible. To complement the BriteSky controls, You are required to undertake the following additional controls and activities:
– You should implement sound and consistent internal controls regarding general IT system access and system usage appropriateness for all internal user organization components associated with the Services, including the correction and deletion or erasure of Client Content
– You should practice removal of user accounts for any users who have been terminated, if such users were previously involved in any material functions or activities associated with the Services.
– Services transactions should be appropriately authorized, secure, timely and complete.
– Client Content should be protected by appropriate methods to ensure confidentiality, privacy, integrity, availability and non-repudiation.
– You should implement controls requiring additional approval procedures for critical transactions relating to the Services.
– You should report to BriteSky in a timely manner any material changes to Your overall control environment that may adversely affect the Services.
– You are responsible for notifying BriteSky in a timely manner of any changes to personnel directly involved with the Services, including without limitation, financial, technical or ancillary administrative functions directly associated with the Services.
– You are responsible for adhering to the terms and conditions stated within Your contracts with BriteSky.
– You are responsible for developing, and if necessary, implementing a business continuity and disaster recovery plan (BCDRP) that will aid in the continuation of the Services.
– You will immediately suspend access to Client Content if You become aware of any internal or external violation by any user of the Services.
– You are responsible for establishing appropriate document control classifications and labelling Client Content to meet Your specific needs.
– The above list of user organization control considerations, including those which include certain specified control objectives, do not represent a comprehensive set of all the controls that should be performed by You. Other controls may be required by Your organization.
4. BriteSky Responsibilities
4.1 For details on BriteSky’s responsibilities relating to the management of customer information and data and associated service commitments, please refer to the End User Terms of Service (Direct) Agreement at www.britesky.ca/about/legal
5.1 The Services. OTHER THAN THE LIMITED RIGHT TO USE THE SERVICES IN ACCORDANCE WITH THE TERMS OF THIS AGREEMENT, YOU DO NO HAVE ANY PROPRIETARY OR OTHER RIGHTS IN AND TO THE SERVICES (INCLUDING, WITHOUT LIMITATION, PERFORMANCE DATA AND BRITESKY DATA) OR ANY DOCUMENTATION ASSOCIATED THEREWITH. ALL OWNERSHIP AND INTELLECTUAL PROPERTY RIGHTS IN AND TO THE SERVICES, ANY DOCUMENTATION ASSOCIATED THEREWITH AND ANY COPY OF THE SAME MADE BY YOU REMAINS WITH BRITESKY AND/OR ITS SERVICE PROVIDERS.
5.2 Client Content. You acknowledge and agree that BriteSky does not exercise any control over any data, information or other content that You and/or Your end users upload to BriteSky’s systems or networks or otherwise transmit to BriteSky or its systems or networks via Your use of the Services (“Client Content”), and that You are solely responsible for all Client Content. Furthermore, You acknowledge and agree that BriteSky will have no liability or responsibility for any Client Content.
5.3 Performance Data. BriteSky shall exclusively own all right, title, and interest to data produced by BriteSky’s systems and networks in the course of the delivery of the Services to You and Your end users.
You are responsible for all activities that occur under Your account, regardless of whether the activities are authorized by You or Your agents, or undertaken on Your behalf. BriteSky and its affiliates are not responsible for unauthorized access to Your account.
5.4 BriteSky Data. For the purposes of this Agreement, the term “BriteSky Data” means all information, data and specifications provided by BriteSky through the Services. BriteSky Data is BriteSky’s Confidential Information. Accordingly, You may not disclose BriteSky Data to any third party without BriteSky’s express, prior written consent in each instance, which BriteSky is under no obligation to provide. In the event that BriteSky consents to the disclosure of BriteSky Data in accordance with the foregoing, You will provide BriteSky with reasonable attribution for any disclosure or publication of the BriteSky Data. BriteSky will have no liability to any third party to which You disclose any BriteSky Data (whether with BriteSky’s consent or in violation of this Agreement). You may not sell, re-sell, distribute, transmit, display, disclose, divulge, reveal, report, publish or transfer the Service or the BriteSky Data to any third party or reproduce or create derivative works based upon the Service or BriteSky Data, or any portion thereof, without the express permission of BriteSky.
6. Confidentiality. You shall not disclose BriteSky Confidential Information, or any part thereof, to any third party. You shall only use BriteSky Confidential Information to exercise Your rights and obligations under this Agreement. Furthermore, You agree to use the same degree of care to protect BriteSky’s Confidential Information from accidental and/or unauthorized use and disclosure as You use to protect Your own confidential information, but in no event shall such degree of care be less than a reasonable degree of care. For the purposes of this Agreement, “BriteSky Confidential Information” means (i) any and all documents and other materials that are marked as being confidential or proprietary, and (ii) any and all information that one would reasonably deem to be confidential given the nature of the information and the circumstances regarding its disclosure, including, but not limited to, trade secrets, object and source code, know-how, proposed products and services, research and development, business forecasts, finances and customer lists.
8. Acceptable Use Policy. You agree that You and Your end users shall at all times comply with the terms of BriteSky’s Acceptable Use Policy, which can be found at www.britesky.ca/legal.
9. DISCLAIMER OF WARRANTIES
9.1 EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, BRITESKY DOES NOT MAKE ANY ADDITIONAL PROMISES, EITHER EXPRESS OR IMPLIED, REGARDING BRITESKY’S PERFORMANCE UNDER THIS AGREEMENT. THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND BRITESKY DOES NOT GUARANTEE THAT THE SERVICES WILL BE FREE OF ANY MATERIAL FAULTS, INTERRUPTION OR UNAVAILABILITY.
9.2 TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRITESKY HEREBY DISCLAIMS ALL WARRANTIES, BOTH EXPRESSED AND IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
9.3 WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, CLIENT ACKNOWLEDGES THAT THE INTERNET CONSISTS OF MULTIPLE INTERCONNECTED NETWORKS THAT ARE INDEPENDENTLY OWNED AND NOT SUBJECT TO BRITESKY’S CONTROL, AND THAT BRITESKY DOES NOT WARRANT THE SERVICES AGAINST FAILURE, MALFUNCTION, OR CESSATION OF INTERNET SERVICES OR CONNECTIVITY BY INTERNET SERVICE PROVIDERS OR ANY OF THE NETWORKS THAT MAKE UP THE INTERNET THAT MAY MAKE THE SERVICES TEMPORARILY OR PERMANENTLY UNAVAILABLE.
10. LIMITATION OF LIABILITY
10.1 LIMITATION OF LIABILITY FOR SPECIFIC TYPES OF DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU AGREE THAT BRITESKY AND THE RESELLER WILL NOT BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY LOST PROFITS, REVENUES, OR DATA, FINANCIAL LOSSES OR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, EXEMPLARY, OR PUNITIVE DAMAGES OR LOST PROFITS, BUSINESS, VALUE REVENUE, GOODWILL OR ANTICIPATED SAVINGS, REGARDLESS OF WHETHER SUCH LOSS OR DAMAGE ARISES FROM A BREACH OF CONTRACT OR BRITESKY’S OR ITS EMPLOYEES’ NEGLIGENCE.
10.2 GENERAL LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY LAW, BRITESKY’S AND RESELLER’S TOTAL LIABILITY ARISING FROM THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, CLAIMS ARISING FROM BRITESKY’S AND/OR ITS EMPLOYEES’ NEGLIGENCE, SHALL BE LIMITED TO THE AMOUNT PAID BY YOU FOR THE SERVICES PROVIDED HEREUNDER DURING THE ONE (1) MONTH IMMEDIATELY PRECEDING THE DATE ON WHICH THE CLAIM AT ISSUE AROSE.
10.3 AVAILABLE REMEDY. BRITESKY’S AND RESELLER’S SOLE LIABILITY AND YOUR SOLE AND EXCLUSIVE REMEDY FOR A FAILURE TO PROVIDE THE SERVICES (INCLUDING, BUT NOT LIMITED TO, FAULTS, DEFECTS OR PERIODS OF UNAVAILABILITY OF THE SERVICES AND/OR A FAILURE OF THE SERVICES TO CONFORM TO THE DESCRIPTIONS SET FORTH IN THIS AGREEMENT) SHALL BE SUBJECT TO (A) IN RESPECT OF BRITESKY, BRITESKY’S SERVICE LEVEL AGREEMENT; AND, (B) IN RESPECT OF RESELLER, THE TERMS OF THE AGREEMENT RELATING TO YOUR PURCHASE OF THE SERVICES ENTERED INTO BETWEEN YOU AND YOUR RESELLER.
10.4 MISCELLANEOUS. THE LIMITATIONS SET FORTH IN THIS SECTION APPLY TO ALL CAUSES OF ACTION IN THE AGGREGATE. YOU ACKNOWLEDGE AND AGREE THAT THIS SECTION REPRESENTS A REASONABLE ALLOCATION OF RISK AND THAT, IN THE ABSENCE OF THESE LIMITATIONS OF LIABILITY, THE TERMS OF THIS AGREEMENT WOULD BE SUBSTANTIALLY DIFFERENT
11. Indemnification. You agree to hold harmless and indemnify BriteSky and its affiliates, officers, agents, and employees from any third-party claim, suit or action (including, without limitation, governmental action, fines or penalties) arising from or related to the use of the Services provided hereunder and/or Your violation of this Agreement, including any liability or expense arising from claims, losses, damages, suits, judgments, administrative hearings, litigation costs and attorneys’ fees.
12. Term and Termination
12.1 Term. The term of this Agreement shall commence upon Your acceptance of the terms and conditions of this Agreement and shall expire upon the occurrence of any one of the following events: (i) the expiration or termination of the agreement entered into between BriteSky and the Reseller relating to the resale and provisioning of the Services; (ii) the expiration or termination of the agreement entered into by and between You and the Reseller relating to the resale and/or use of the Services; or, (iii) the termination of this Agreement in accordance with the terms and conditions set forth herein.
12.2 Termination of Agreement for Cause. In addition to any other rights or remedies that BriteSky may have, BriteSky may immediately terminate this Agreement: (i) for any actual, suspected or anticipated breach of this Agreement by You; and/or, (ii) in the event that BriteSky believes, in its sole discretion, that Your or Your end users’ use of the Services negatively affects BriteSky, its systems or networks or any third party.
12.3 Termination, Suspension, Modification and Discontinuation of Services by BriteSky. BriteSky may, in its sole discretion, terminate, suspend, modify or discontinue the Services at any time and without notice for any actual, suspected or anticipated use of the Services that may negatively affect BriteSky, its systems or networks, or any third party. BriteSky shall not be liable for any termination, suspension, modification or discontinuation of the Services in accordance with this Section.
12.4 Effect of Termination, Expiration or Cancellation. Upon the termination, expiration or cancellation of this Agreement, all use of the Services must immediately cease and You shall immediately return or destroy all copies of BriteSky Confidential Information disclosed to or obtained by You. You acknowledge and agree that BriteSky shall only retain Client Content for a period of ten (10) days following the expiration or termination of this Agreement; immediately following such ten (10) day period, all Client Content shall be deleted from BriteSky’s systems, with no liability to You. The respective rights and obligations of the parties to this Agreement shall survive the termination, expiration or cancellation of this Agreement, regardless of the reasons for such termination, expiration or cancellation, if they should by law or by their nature ordinarily be deemed to survive.
13. Export Compliance. You will comply with all applicable export control and economic sanctions laws and regulations in the performance of this Agreement and in the import, export, re-export, shipment, transfer, use, operation, maintenance, or repair of the Services and any related technical data and services.
14. Relationship of the Parties. The performance by BriteSky of its duties and obligations under this Agreement and shall be that of an independent contractor, and nothing in this Agreement shall create or imply an agency relationship between the parties to this Agreement, nor will the Agreement be deemed to constitute a joint venture or partnership between the parties to this Agreement.
15. Governing Law. This Agreement shall be governed by the laws of the Province of Ontario without regards to its conflicts of laws provisions. Neither the Uniform Computer Information Transaction Act (“UCITA”) nor the provisions of the United Nations Convention on the International Sale of Goods (CISG) shall apply to this Agreement. Any dispute arising under this Agreement shall be resolved exclusively by the courts located in Ottawa, Ontario, Canada and You hereby consent to the exclusive personal jurisdiction of, and venue in, such courts.
16. Severability. If any provision of this Agreement is determined by a court to be invalid, illegal, or unenforceable, such determination shall not impair or affect the validity, legality, or enforceability of the remaining provisions of the relevant agreement, and each provision, or portion thereto, is hereby declared to be separate, severable, and distinct and the parties to this Agreement shall use their best efforts to agree upon a substitute provision that comports as closely as possible with the intent and effect of the stricken provision, failing which the court shall construe the relevant agreement to as closely as possible achieve the intention of the parties to this Agreement had the stricken provision remained.
18. Assignment. You may not assign any of Your rights or obligations under this Agreement absent BriteSky’s prior written consent. Any assignment of such rights or obligations in violation of this Agreement shall be null and void. Any valid assignment of Your rights and obligations under this Agreement shall not relieve You of any obligations or liabilities which arise prior to or on the date of such assignment.
19. Entire Agreement and Waiver. This Agreement is the complete and exclusive statement of the agreement between the parties to this Agreement with respect to the subject matter of this Agreement, and this Agreement supersedes any proposal or prior agreement, oral or written, and any other communications between the parties in relation to the subject matter of this Agreement.
20. Contact Information. You shall provide the Reseller with Your contact information and shall ensure that such information is accurate and up-to-date at all times. For information on how to contact BriteSky, please contact the Reseller or visit BriteSky at www.britesky.ca.