CHAMBERMADE END USER AGREEMENT
1. Program: The “Program” means the software program specified in the accompanying order form (the “Order Documentation”) or any other software provided to Licensee by SIVA Creative Incorporated (herein referred to as “CHAMBERMADE”) not covered expressly by a different agreement and includes the software and all accompanying data files and documentation, any updates to the Programs that may be provided from time to time by CHAMBERMADE, and all copies of any of the foregoing.
2. Grant: Subject to payment of the applicable onboarding and periodic subscription fees, and the limitations and restrictions set forth in this agreement, CHAMBERMADE grants a non-exclusive license to use the Program to the organization or individual by whom or on whose behalf this copy of the Program was licensed, being the named licensee in the Program (the licensee is identified, among other places, in the About dialog) (“Licensee”) for the term of this agreement. Licensee will not permit the Program to be accessed by more than the maximum number of users or workstations licensed, as set out in the About Dialog.
(b) if CHAMBERMADE, at its sole discretion, releases commercially available updates to the Program (excluding new full version releases of the Program), the updates will be made available to Licensee, in a manner determined by CHAMBERMADE, at no additional cost (excluding any third party connection charges) and on the same terms herein (unless such other terms are provided to Licensee with the update).
Therefore, Licensee acknowledges that CHAMBERMADE may:
(b) collect and use technical data and related information—including but not limited to technical information about the Licensee’s device, system and application software, and peripherals—that is gathered periodically to facilitate the provision of software updates, product support, and other services (if any) related to CHAMBERMADE.
Where applicable, Licensee is responsible for ensuring its use of any programs and any materials accessible by way of the programs complies with Canada’s Anti-Spam Law (“CASL”) or the U.S. equivalent, Controlling the Assault of Non-Solicited Pornography And Marketing Act (CAN-SPAM), as may be amended from time to time, and with any other applicable rules and regulations of the Canadian Radio-television and Telecommunications Commission (“CRTC”) or Federal Communications Commission (“FCC”), as applicable, and any similar or replacement body with authority to administer and enforce same.
CHAMBERMADE will hold the Licensee liable and will require Licensee to indemnify CHAMBERMADE, its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers in accordance with the terms of this agreement, for any damage which they may suffer, sustain, pay or incur as a result of the failure of Licensee or by an entity for whom Licensee is responsible to comply with any applicable law, including without limitation, CASL (Canada) or CAN-SPAM (United States of America), as applicable. Except to the extent expressly provided in the following paragraph, this Agreement and the relationship between the Licensee and CHAMBERMADE shall be governed by the laws of the Province of Ontario, excluding its conflicts of law provisions. Licensee acknowledges that all entities governed under the Terms and Conditions as set forth in the United States – Mexico – Canada Agreement (USMCA), agree to be bound by the laws of the Province of Ontario. The Licensee and CHAMBERMADE agree to submit to the personal and exclusive jurisdiction of the courts located within the Province of Ontario to resolve any dispute or claim arising from this Agreement. If (a) Licensee is not a Canadian citizen; (b) Licensee does not reside in Canada; (c) Licensee is not accessing the Service from Canada; and (d) Licensee is a citizen of one of the countries identified below, Licensee hereby agrees that any dispute or claim arising from this Agreement shall be governed by the applicable law set forth below, without regard to any conflict of law provisions, and Licensee hereby irrevocably submit to the non-exclusive jurisdiction of the courts located in the state, province or country identified below whose law governs:
If Licensee is a citizen of any European Union country or Switzerland, Norway or Iceland, the governing law and forum shall be the laws and courts of Licensee’s usual place of residence.
Specifically excluded from application to this Agreement is that law known as the United Nations Convention on the International Sale of Goods.
(a) Grant. Licensee hereby grant CHAMBERMADE the right to access Licensee’s Content, upload Licensee’s Content to CHAMBERMADE’s servers; and take such steps as necessary to make the Content ready for Licensee’s use by way of CHAMBERMADE (the “Limited Purpose”). Except as required by law, unless it receives Licensee’s written permission, CHAMBERMADE will not use Licensee;s Content other than as necessary to achieve the Limited Purpose. For clarity and without limiting the generality of the prior sentence, CHAMBERMADE confirms it will not use Licensee’s Content or derive information from it for any advertising or similar commercial purposes.
(b) Confidentiality. CHAMBERMADE shall not disclose the Content to any person except to its affiliates, employees, internal contractors and agents having both a need to know to accomplish the Limited Purpose and an obligation of confidentiality. The foregoing obligation of confidentiality and restrictions on use hereunder shall not apply to Content: (a) known to CHAMBERMADE before receipt from the Licensee, without a duty of confidentiality; (b) generally available to the public (or becomes so), unless due to a CHAMBERMADE breach; (c) received by CHAMBERMADE from a third party without a duty of confidentiality; or (d) is independently developed by or for CHAMBERMADE without any use of the Content. It shall not be considered a breach of this Agreement if CHAMBERMADE discloses Content as required by law; provided that CHAMBERMADE: (a) where permitted by law, gives Licensee written notice promptly upon receipt of a disclosure requirement and before the disclosure is made; (b) takes reasonable actions and provide reasonable assistance to the Licensee to secure confidential treatment of the Content; and (c) discloses only such Content as is required by law.
(c) Personal Information. Personal information that forms part of the Content will be stored by CHAMBERMADE in an encrypted manner and treated in accordance with all applicable Canadian and provincial privacy laws.
(d) Location. Licensee’s Content will be stored and backed-up at data centres located in Canada only.
(e) Security. CHAMBERMADE has implemented and will maintain and follow appropriate physical, technical and organizational measures intended to protect Licensee’s Content against accidental, unauthorized or unlawful access or disclosure, including without limitation, operational security, encryption, access control, identity management, threat management, logging and network security. Licensee’s Content will only be made available to those limited people at CHAMBERMADE or its affiliates that need access in relation to the Limited Purpose. CHAMBERMADE will promptly notify Licensee of any security incidents involving Licensee’s Content.
(g) Ownership. As between the parties, Licensee retains all rights, title and interests in and to the Content, other than the rights specifically retained by CHAMBERMADE herein.
(h) Liability. Notwithstanding Section 15, CHAMBERMADE’s liability to Licensee in the event of CHAMBERMADE’s misuse of the Content is limited to direct damages and will not, in the aggregate, exceed the amount the Licensee actually paid CHAMBERMADE under this Agreement in relation to the Program during the one (1) calendar month preceding the claim.
(i) Amendments. Notwithstanding Section 16 of this Agreement, CHAMBERMADE will not unilaterally amend its commitments in Sections 22 (a) through (h) in a way that will result in greater Content use rights; a reduction of commitments or liability in relation to the Content; nor a change in Content ownership.
(a) Licensee represents and warrants that:
(i) Licensee has the right and authority to use and disclose any information that Licensee transmits using CHAMBERMADE, including that the information is not subject to any confidentiality obligations and that any information of or about individuals is only accessed, collected, used, or disclosed by Licensee in accordance with applicable privacy laws;
(ii) Licensee will not tamper with CHAMBERMADE, including by translating, reverse engineering, decompiling, disassembling or modifying CHAMBERMADE or by merging CHAMBERMADE with any other system; and
(iii) Licensee will only use information Licensee receives from a client of Licensee through CHAMBERMADE with the consent of such client, and solely for the purpose of completing a transaction or record using the Program related to such client.
(b) Licensee is responsible for any errors in information supplied:
(i) by a client of Licensee through the CHAMBERMADE service; or (ii) by Licensee through the CHAMBERMADE service, and Licensee will defend, indemnify, and hold CHAMBERMADE, its affiliates and related entities, and any of their respective directors, officers, employees, agents, and contractors harmless from and against all claims, liability, and expenses, including legal fees and costs, arising out of a claim by a third party relying on information supplied pursuant to (i) or (ii).
(c) For certainty and without limiting Section 13, CHAMBERMADE does not warrant the contents of any information transmitted using CHAMBERMADE, including its accuracy, completeness, or usefulness, nor does CHAMBERMADE warrant that any information transmitted using CHAMBERMADE is actually received by any party or is accurately transmitted.
(d) Licensee agrees that the receipt of information using CHAMBERMADE does not in any way limit, reduce or replace any obligation a Licensee may have to: (i) meet with, verify the identity of, or otherwise know their client, (ii) comply with any anti-money laundering, fraud prevention, or other similar laws, or (iii) comply with professional or ethical requirements with respect to their clients.
(e) CHAMBERMADE strongly discourages the inclusion of any credit card details or other highly confidential information in its Content and strongly advises their exclusion or redaction. Licensee agrees to indemnify CHAMBERMADE in respect of any third party claims relating to any Content, except where those claims arise due to CHAMBERMADE’s negligence or intentionally wrongful conduct.
(f) The Licensee represents and warrants that: (i) it has obtained meaningful consent from the applicable individual or entity for the collection, use and disclosure of Content consisting of personal information as defined in applicable privacy laws; (ii) Content does not and will not infringe any copyright, patent, trade-mark, trade secret or other proprietary rights or rights of publicity or privacy; (iii) materials do not and will not violate any law, statute, ordinance or regulation; and (iv) materials are not, and will not be, defamatory, trade libelous, obscene or pornographic.
(g) CHAMBERMADE reserves the right to remove (or have removed) from its servers any Content which it believes, in its sole discretion, may damage or expose to liability CHAMBERMADE or its affiliated entities, and any of their respective directors, officers, employees, consultants, agents and suppliers, and the Licensee authorizes CHAMBERMADE and its authorized representatives to effect such removal and consent to such removal. The Licensee agrees that CHAMBERMADE shall not be liable for, and waive any claim arising from, any such materials removal.