ARTICLE 8 – INDEMNIFICATION 

8.1. Indemnification by TSS

TSS shall, at its expense, defend, indemnify and hold harmless Customer and its affiliates, directors, agents, and users against any claim, action or allegation brought against Customer that the Software, except for any customization under Section 5.2 hereof, infringes any intellectual property right of any third party and shall pay any damages or judgments awarded or settlements entered into. Customer shall give prompt written notice to TSS of any such claim, action or allegation of infringement and give TSS the authority to proceed as contemplated herein. TSS will have the exclusive right to defend any such claim, action or allegation and make settlements thereof at its own discretion, and Customer may not settle or compromise such claim, action or allegation, except with prior written consent of TSS. Customer shall give such assistance and information as TSS may reasonably require to settle or oppose such claims. Customer may participate in such defense with counsel of its own choice, at its own expense.

8.2. Indemnification by Customer

Subject to TSS’s obligations under Section 8.1, Customer shall, at its expense, defend, indemnify and hold harmless TSS and its affiliates, directors, agents, and users, against any third party claims, actions and demands brought against TSS or TSS’s affiliates, directors, agents, and users. Customer shall pay all damages, if any, finally awarded against TSS indemnified parties or agreed upon in settlement by Customer (including other reasonable out-of-pocket costs incurred by TSS, including reasonable attorneys’ fees, in connection with enforcing this Section 8.2) arising from: (i) Customer’s breach or violation of Customer’s responsibilities under Sections 3.2, 4, or 5, (ii) claims that Customer Data or use thereof in the Software infringes or violates the rights of any third party, (iii) claims that Customer’s or its affiliates, directors, agents, and Users use of the Software or services in violation of this Agreement infringes or violates the rights of such third party; or (iv) claims that any customization under Section 5.2 violates or infringes any right of any third party.

8.3. Options 

In the event any such infringement, claim, action or allegation is brought or threatened accusing the Software, TSS shall, at its sole option and expense:

• procure for Customer the right to continue use of the Software or infringing part thereof;
• modify or amend the Software or infringing part thereof, or replace the Software or infringing part thereof with other software having substantially the same or better capabilities, or, if neither of the foregoing is commercially practicable; or
• terminate this Agreement and repay to Customer all amounts paid by Customer hereunder.

8.4. Exclusions

TSS’s obligations under this Section 8 will not apply to the extent the infringement arises as a result of modifications to the Software made by any party other than TSS or TSS’s authorized representative.

8.5. Limitation 

This Section 8 states the entire liability of TSS with respect to infringement of any patent, copyright, trade secret or other proprietary right.

ARTICLE 9 – CONFIDENTIAL INFORMATION

9.1. Definition 

“Confidential Information” means all Software listings, Documentation, information, data, drawings, benchmark tests, specifications, trade secrets, object code and machine-readable copies of the Software, source code relating to the Software, and any information disclosed by either party to the other party, either directly or indirectly, in writing, orally or by inspection of tangible objects that is designated as “Confidential,” “Proprietary” or some similar designation. Information communicated orally will be considered Confidential Information if such information is confirmed in writing as being Confidential Information within a reasonable time after the initial disclosure. Confidential Information may also include information disclosed to a disclosing party by third parties. Confidential Information will not, however, include any information which (i) was publicly known and made generally available in the public domain prior to the time of disclosure by the disclosing party, (ii) becomes publicly known and made generally available after disclosure by the disclosing party to the receiving party through no action or inaction of the receiving party, is already in the possession of the receiving party at the time of disclosure by the disclosing party as shown by the receiving party’s files and records immediately prior to the time of disclosure, (iii) is obtained by the receiving party from a third party without a breach of such third party’s obligations of confidentiality, (iv) is independently developed by the receiving party without use of or reference to the disclosing party’s Confidential Information, as shown by documents and other competent evidence in the receiving party’s possession, or (v) is required by law to be disclosed by the receiving party, provided that the receiving party gives the disclosing party prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.

9.2. Non-Use and Non-Disclosure

Each party agrees not to use any Confidential Information of the other party for any purpose except to exercise its rights and perform its obligations under this Agreement. Each party agrees not to disclose any Confidential Information of the other party to third parties or to such party’s employees, except to those employees of the receiving party with a need to know.

9.3. Maintenance of Confidentiality

Each party agrees that it shall take reasonable measures to protect the secrecy of and avoid disclosure and unauthorized use of the Confidential Information of the other party. Without limiting the foregoing, each party shall take at least those measures that it takes to protect its own most highly confidential information and shall ensure that its employees who have access to Confidential Information of the other party have signed a non-use and non-disclosure agreement in content similar to the provisions hereof, prior to any disclosure of Confidential Information to such employees. Neither party shall make any copies of the Confidential Information of the other party unless the same are previously approved in writing by the other party. Each party shall reproduce the other party’s proprietary rights notices on any such approved copies, in the same manner in which such notices were set forth in or on the original.

9.4. Return of Materials

Upon the termination of this Agreement, each party shall deliver to the other party all of such other party’s Confidential Information that such party may have in its possession or control.

ARTICLE 10 – TERM AND TERMINATION 

10.1. Term

Customer may terminate this Agreement (i) upon the material breach of this Agreement by TSS, provided that such breach remains uncured for ten days following TSS’s receipt of written notice of such breach, or (ii) upon the expiration of any subscription term, provided Customer provides notice prior to the end of the then-current term. TSS will provide notice of renewal 30 days before term is set to expire.

10.2. Termination by Customer

Customer may terminate this Agreement (i) upon the material breach of this Agreement by TSS, provided that such breach remains uncured for ten days following TSS’s receipt of written notice of such breach, or (ii) upon the expiration of any subscription term, provided Customer provides notice prior to the end of the then-current term.

10.3. Termination Events

TSS may, by written notice to Customer, terminate this Agreement if any of the following events (“Termination Events”) occur:

• Customer fails to pay any amount due TSS within 30 days after TSS gives Customer written notice of such nonpayment;

• Customer is in material breach of any non-monetary term, condition or provision of this Agreement, which breach, if capable of being cured, is not cured within 30 days after TSS gives Customer written notice of such breach;
• Customer (i) terminates or suspends its business, (ii) becomes insolvent, admits in writing its inability to pay its debts as they mature, makes an assignment for the benefit of creditors, or becomes subject to direct control of a trustee, receiver or similar authority, or becomes subject to any bankruptcy or insolvency proceeding under federal or state statutes;
• TSS elects to refund Customer’s fees in accordance with Section 8.3. (c); or
• TSS may elect not to renew any subscription term upon written notice to Customer no less than 60 days prior to the end of the then-current subscription term.

10.4. If any Termination Event occurs, termination will become effective immediately or on the date set forth in the written notice of termination. Termination of this Agreement will not affect the provisions regarding Customer’s or TSS’s treatment of Confidential Information, provisions relating to the payment of amounts due, or provisions limiting or disclaiming TSS’s liability, which provisions will survive termination of this Agreement.

10.5. No later than 30 days after the date of termination of this Agreement for any reason, if the Software was delivered to Customer hereunder, Customer shall return the Software and all copies, in whole or in part, all Documentation relating thereto, and any other Confidential Information in its possession that is in tangible form. Customer shall furnish TSS with a certificate signed by an executive officer of Customer verifying that the same has been done. If the Software is provided as a service and not delivered to Customer hereunder, TSS may immediately deactivate Customer’s account. TSS may keep copies of Customer Data solely to the extent necessary for the performance of its obligations under this Agreement; however, TSS will not be obligated to keep Customer Data after the date of termination except as may be specifically set forth in the Order. In no event will any termination relieve Customer of the obligation to pay any fees payable to TSS for any period prior to the effective date of termination, unless otherwise stated in this Agreement.

ARTICLE 11 – MISCELLANEOUS 

11.1. Nonassignment/Binding Agreement

Neither this Agreement nor any rights under this Agreement may be assigned or otherwise transferred by Customer, in whole or in part, whether voluntarily or by operation of law, including by way of sale of assets, merger or consolidation, without the prior written consent of TSS, which consent will not be unreasonably withheld. TSS may assign this Agreement upon written notice to Customer. Subject to the foregoing, this Agreement will be binding upon and will inure to the benefit of the parties and their respective successors and assigns.

11.2. Notices

Any notice required or permitted under the terms of this Agreement or required by law must be in writing and must be delivered in person or sent by overnight air courier, in each case properly posted and fully prepaid to the appropriate address set forth below. Either party may change its address for notice by notice to the other party given in accordance with this Section. Notices will be considered to have been given at the time of actual delivery in person, 3 business days after deposit in the mail as set forth above, or one day after delivery to an overnight air courier service.

11.3. Force Majeure 

Neither party will incur any liability to the other party on account of any loss or damage resulting from any delay or failure to perform all or any part of this Agreement if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control and without negligence of the parties. Such events, occurrences, or causes will include, without limitation, acts of God, strikes, lockouts, riots, acts of war, earthquake, fire and explosions, but the inability to meet financial obligations is expressly excluded.

11.4. Waiver

Any waiver of the provisions of this Agreement or of a party’s rights or remedies under this Agreement must be in writing to be effective. Failure, neglect, or delay by a party to enforce the provisions of this Agreement or its rights or remedies at any time, will not be construed and will not be deemed to be a waiver of such party’s rights under this Agreement and will not in any way affect the validity of the whole or any part of this Agreement or prejudice such party’s right to take subsequent action. No exercise or enforcement by either party of any right or remedy under this Agreement will preclude the enforcement by such party of any other right or remedy under this Agreement or that such party is entitled by law to enforce.

11.5. Severability

If any term, condition, or provision in this Agreement is found to be invalid, unlawful or unenforceable to any extent, the parties shall endeavor in good faith to agree to such amendments that will preserve, as far as possible, the intentions expressed in this Agreement. If the parties fail to agree on such an amendment, such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.

11.6. Integration

This Agreement contains the entire agreement of the parties with respect to the subject matter of this Agreement and supersedes all previous communications, representations, understandings and agreements, either oral or written, between the parties with respect to said subject matter. This Agreement may not be amended, except by a writing signed by both parties.

11.7. Purchase Orders

No terms, provisions or conditions of any purchase order, acknowledgement or other business form that Customer may use in connection with accessing or licensing the Software will have any effect on the rights, duties or obligations of the parties under, or otherwise modify, this Agreement, regardless of any failure of TSS to object to such terms, provisions or conditions.

11.8. Export

Customer may not export or re-export the Software without the prior written consent of TSS. 

11.9. Counterparts 

This Agreement may be executed in counterparts, each of which so executed will be deemed to be an original and such counterparts together will constitute one and the same agreement.

11.10. Governing Law

This Agreement will be interpreted and construed in accordance with the laws of the Province of Ontario and Canada, without regard to conflict of law principles. The parties hereby consent to the exclusive jurisdiction of the Provincial courts located in Toronto, Ontario, Canada for resolution of any disputes arising out of this Agreement.