THIS SUBSCRIPTION AGREEMENT GOVERNS THE PROVISION AND USE OF THE HELM SERVICES AND HELM-RELATED SUPPORT SERVICES (see SUPPORT AND MAINTENANCE SERVICE DESCRIPTION) PURCHASED BY YOU AND ANY AFFILIATED COMPANIES (COLLECTIVELY, “YOU” or “SUBSCRIBER”) FROM HELM OPERATIONS SOFTWARE INC. (“HELM OPERATIONS”).
PLEASE READ THIS AGREEMENT CAREFULLY. BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.
IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, OR ON BEHALF OF AN AFFILIATE, YOU HEREBY REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, AND “SUBSCRIBER” SHALL MEAN SUCH ENTITY. IF YOU DO NOT HAVE SUCH AUTHORITY OR YOU OR SUCH ENTITY DO NOT AGREE TO THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND NEITHER YOU NOR SUCH ENTITY MAY USE THE SERVICES.
IF YOU REGISTER FOR A FREE TRIAL FOR HELM SERVICES, THIS AGREEMENT WILL ALSO GOVERN THAT FREE TRIAL, PROVIDED THAT (I) ANY TERMS REFERENCING WARRANTIES SHALL NOT APPLY TO SUCH TRIAL, AND IN ALL CASES THE SERVICES ARE PROVIDED ON AN “AS IS” BASIS, AND (II) USE DURING ANY SUCH TRIAL IS AT YOUR OWN RISK, AND HELM OPERATIONS DISCLAIMS ANY LIABILITY IN RESPECT THEREOF. THE SERVICES MAY NOT BE USED FOR ANY REVENUE-GENERATING PURPOSES DURING THE TRIAL PERIOD.
You may not access the Services if you are a direct competitor of Helm Operations, except with Helm Operations’ prior written consent. In addition, you may not access the Services for purposes of monitoring their availability, performance or functionality, or for any other benchmarking or competitive purposes.
1. DEFINITIONS . In this Agreement:
(a) “Activation Date” means the first date that Subscriber is enabled by Helm Operations to connect to the Services.
(b) “Affiliate” means, in respect of an entity, any entity which directly or indirectly Controls, is Controlled by, or is under common Control with such entity. “Control” for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of an entity.
(c) “Agreement” means this Helm Subscription Agreement, including all accepted Order Forms.
(d) “Confidential Information” means and includes any written or orally or visually disclosed information relating to the disclosing party’s business identified as “confidential” or which the receiving party should reasonably know is confidential or not generally known to the public, including, without limitation:
(i) all know-how, methods, processes, technology and other proprietary information owned, licensed, used or developed by the disclosing party, including proprietary rights protected by trade secret and other intellectual property rights, and
(ii) all information relating to the Helm Services (including pricing), the disclosing party’s business, structure, personnel, operations, financial matters, marketing, commercial strategies, customer lists, customer data, contractual records, correspondence, products, programs, devices, concepts, inventions, designs, methods, data, and items provided to the disclosing party by third parties subject to restrictions on use or disclosure.
(e) “Documentation” means the documentation, help files, user manuals, handbooks, service descriptions (including the Support and Maintenance Services Description), and any other written or electronic material relating to the Helm Services and Support Services provided by Helm Operations to its customers from time to time.
(f) “Helm Operations System” means, in respect of the Helm Services, the entire physical operation(s) located at the facilities designated by Helm Operations from time to time to host the Helm Services, including all networks and servers, hardware and software utilized in the provision of the Helm Services located behind the Point of Access.
(i) “Effective Date” means the date on which Subscriber first accepts this Agreement.
(j) “Helm Services” means the Helm marine operations services subscribed to by Subscriber as set out in the Order Form(s), and includes any modifications and derivative works developed by Helm Operations for Subscriber from time to time pursuant to a Professional Services Agreement .
(g) “Fees” means the fees for the Services as set out in the Order Form(s), and any other amounts payable under this Agreement, as calculated from the Activation Date.
(h) “Non-Conformity” means the failure of the Helm Services software to perform in accordance with the Documentation.
(i) “Order Form(s)” means the order form(s) executed by Subscriber from time to time setting out the details of the Services subscribed to by Subscriber, including applicable Fees. By executing and submitting an Order Form, Subscriber agrees to be bound by the terms of this Agreement, which will be incorporated by reference into and form an integral part of hereof.
(j) “Point of Access” means Helm Operations’ border router(s) which is (are) used to establish connectivity from the Helm Operations System to Helm Operations’ Internet service provider and the public Internet.
(k) “Professional Services Agreement” means the Professional Service Agreement, if any, executed by the parties.
(l) “Representatives” means, in respect of a party, the directors, officers, employees, agents and contractors of such party.
(m) “Services” means the Helm Services, Support Services, services provided pursuant to a Professional Services Agreement, and/or any additional services supplied by Helm Operations.
“Support and Maintenance Services Description” means the description of technical support services for the Helm Services set out at www.helmoperations.com/support-and-maintenance-services-description, as amended by Helm Operations from time to time.
(n) “Support Services” means Helm-related technical support services purchased by Subscriber, as described in the Support and Maintenance Services Description.
(o) “System Availability Period” means, in respect of the Helm Services, twenty-four (24) hours per day, seven (7) days per week, excluding the System Maintenance Period and any downtime due to causes described in Sections 4 or 11(c)
(p) “System Maintenance Period” means, in respect of the Helm Services, scheduled maintenance periods during which Helm Services access will not be available to Subscriber due to required system maintenance, upgrades, and other hosting requirements for the Helm Operations System.
(q) “Term” has the meaning ascribed to it in Section 2.
All other terms defined in this Agreement shall have the meanings ascribed thereto
2. TERM.
This Agreement shall commence on the Effective Date. Unless terminated in accordance with its terms, this Agreement shall continue in force for a period of one (1) year from the Activation Date, or as otherwise as specified in the Order Form for the Helm Services. Thereafter, this Agreement shall automatically renew for successive one (1) year terms unless either party provides the other with written notice of its intention not to renew, with sixty (60) days prior written notice to the expiry of the then-current term. The initial term and any renewal terms shall be collectively referred to in this Agreement as the “Term”.
3. HELM SERVICES.
(a) Subject to the terms of this Agreement, Helm Operations will supply the Helm Services purchased by Subscriber, and Subscriber is granted a limited, non-exclusive, non-transferable right to access and use Helm Services software during the Term, solely as necessary for Subscriber’s use of the Helm Services for its internal business purposes.
(b) Helm Operations will provide Subscriber with one (1) administration account (login and password) to access the Helm Services on the Helm Operations System.
(c) Helm Operations will provide the Helm Services in accordance with the following standards:
(i) Helm Operations will be responsible for delivery of access to the Helm Services on the Helm Operations System only up to and including the Point of Access, and is not responsible for any failure due to Subscriber ‘s telecommunications connections, facilities (including internal local area networks (LAN)) or local infrastructure;
(ii) Helm Operations will use all reasonable commercial efforts to ensure that the Helm Services will be available during the System Availability Period;
(iii) Helm Operations will provide Subscriber with at least forty-eight (48) hours prior electronic notice of any scheduled System Maintenance Period;
(iv) Helm Operations shall have the right to implement updates and upgrades to any software used in providing the Helm Services, at its sole discretion;
(v) Helm Operations will respond to incidents that have been reported by Subscriber within the response times set out in the applicable Support and Maintenance Services Description;
(vi) in the event of Helm Operations System failure and the Helm Operations System is hosted by Helm Operations, Helm Operations will use commercially reasonable efforts to complete data recovery requests using the most recent version of the backup data, databases, applications and configuration pieces required to restore Subscriber data; and
(vii) Helm Operations cannot be responsible for the unavailability of Helm Services due to causes beyond Helm Operations’ reasonable control, including without limitation, those causes described in Sections 4 and 11(c).
4. RESTRICTIONS ON USE OF HELM SERVICES .
(a) Subscriber shall use the Helm Services only in accordance with the Documentation and any other instructions issued by Helm Operations from time to time. Failure to use the Helm Services in accordance with instructions provided by Helm Operations may result in failure of all or any part of the Services, and/or accidental loss of data or data integrity. If Subscriber does not understand the requirements for the proper use of the Helm Services, Subscriber must contact Helm Operations for additional information.
(b) Subscriber may make copies of the Documentation solely for its own internal purposes in conjunction with its use of the Helm Services. Copyright and other proprietary rights in the Documentation shall remain vested in Helm Operations. Subscriber may not remove any title, trademark, copyright and/or restricted rights or proprietary notices or labels from, or otherwise modify the Documentation, and all copies of the Documentation must include all such notices and labels.
(c) Subscriber shall restrict access to the Helm Services to its Representatives, solely as required for its internal business purposes. Without limiting the generality of the foregoing, Subscriber may not sell, rent, loan or otherwise grant any rights in or to the Helm Services, or permit any other party to do so. Subscriber will be solely responsible for its Representatives’ compliance with this Agreement.
(d) Subscriber will use all reasonable efforts to prevent unauthorized access to or use of the Helm Services, and will promptly notify Helm Operations of any unauthorized use or access of which it becomes aware.
(e) Subscriber agrees not to:
(i) introduce any kind of malware, including but not limited to viruses, worms, Trojan horses or other harmful code that may damage the operation of the Helm Services or the Helm Operations System;
(ii) use the Helm Services in any manner that could damage, disable, overburden or impair any part of the Helm Operations System, or interfere with any other Helm Operations subscriber’s data or their ability to use the Helm Services or the Helm Operations System;
(iii) attempt to gain unauthorized access to the Helm Services or their related systems or networks;
(iv) attempt to gain access to other subscribers’ accounts through any manner of hacking, or password mining or other means;
(v) attempt to embed the Helm Services within another website without express written consent from Helm Operations;
(vi) attempt to use such methods as SQL Injection, Cross Site Scripting, Remote File Inclusion, Cross Site Request Forgery and any other methods not authorised by Helm Operations to gain access to the Helm Operations System or the Helm Services;
(vii) attempt a “denial of service” (DOS) attack of any kind;
(viii) use the Helm Services or the Helm Operations System to transmit SPAM, junk email or other unsolicited email of any kind;
(ix) in connection with Helm Services, engage in conduct that would constitute a criminal or quasi-criminal offence, that could give rise to civil liability, intellectual property rights infringement, or privacy rights violations, or that would otherwise violate any applicable local, provincial, state, federal or international law, or accepted Internet protocol; or
(x) use any hardware device provided by Helm Operations to host non-Helm Operations System-specific applications or to perform functions other than hosting the Helm Operations System.
5. SUPPORT SERVICES.
Subject to the payment of all applicable Fees, Helm Operations will provide the Support Services in accordance with the technical services description for the support level purchased by Subscriber, as amended from time to time. Support Services are limited to those set out in the Support and Maintenance Services Description, and expressly exclude any additional Services required to correct any Non-Conformities resulting from the causes described in Sections 4 and 11(c). Additional technical support may be agreed by Helm Operations on a case-by-case basis, and shall be charged on a time and materials basis at Helm Operations’ then-standard rates therefor.
6. FEES AND PAYMENT.
(a) Subscriber agrees to pay to Helm Operations the Fees plus all applicable taxes in accordance with the Order Form(s). Fees are based upon Services purchased, and not actual usage.
(b) The initial invoice will be issued on or about the Activation Date, and the first month’s Fees will be prorated accordingly. Except as otherwise set out in the accepted Order Form(s), Helm Operations will issue monthly invoices for Fees approximately thirty (30) days in advance of each calendar month. Payment terms are net thirty (30) days from the date of invoice and Fees are payable to Helm Operations as set out in the invoice.
(c) Unless otherwise expressly stated, all references to monetary amounts contained in this Agreement, an accepted Order Form, a sales quote, or any reports, invoices or other documents issued pursuant to or in connection with this Agreement, shall be deemed to be references to United States dollars.
(d) Subscriber shall pay interest on any undisputed invoiced amounts which are unpaid after 30 days at a rate of 2% per month (26.82% per annum, effective rate) or the maximum amount allowed by law (whichever is less), calculated from the date such amounts become due and payable.
(e) Without limiting any other rights and remedies which Helm Operations may have, Helm Operations shall also have the right to (i) revise payment terms, including requiring payment in advance, and/or (ii) suspend or terminate any or all of the Services upon notice but without any liability to Subscriber or any other party, if any undisputed Fees or other amounts owing by Subscriber to Helm Operations remain unpaid for three consecutive months, including any charge backs for NSF checks.
(f) All Fees are exclusive of all taxes, duties and levies of any kind, including any sales, use, excise, value-added and other applicable taxes, withholdings, and governmental charges (collectively, “Taxes”). Subscriber shall be solely responsible for the payment of all applicable Taxes, other than taxes on Helm Operations’ income. If Helm Operations pays any such amounts on behalf of Subscriber, Subscriber shall reimburse Helm Operations upon presentation of proof of payment.
7. INTELLECTUAL PROPERTY RIGHTS.
(a) Subscriber acknowledges that Helm Operations has developed and uses valuable technical and non-technical information, trade secrets, know-how and the like in the supply of the Helm Services. Subscriber agrees that, except for the limited right to use the Helm Services as set out in this Agreement, all rights, title and interest in and to the Services, the Helm Services software, the Helm Operations System, Documentation, any modifications and derivative works of any of the foregoing, and any other hardware, software, equipment and materials used by Helm Operations in conjunction with the delivery of the Helm Services are and shall remain vested in Helm Operations.
(b) Subscriber recognizes and acknowledges the great value of the goodwill associated with Helm Operations’ name and trademarks, and the identification of Helm Operations’ goods or services therewith. Subscriber agrees that it obtains no rights, title or interest of any kind in or to any trademarks, tradenames, logos, service marks or other markings belonging to Helm Operations.
(c) Helm Operations is granted a perpetual, irrevocable, royalty-free, worldwide license to use any suggestions, recommendations, comments or other feedback (“Feedback”) provided by Subscriber, including its Representatives, with respect to the Services, the Helm Services software, Documentation or any other propriety information provided by Helm Operations to Subscriber. All Feedback shall be given voluntarily and without expectation of, or requirement for, compensation. Specifically, Subscriber will not give any Feedback that is subject to license or other restrictions, or that may require any Helm Operations product, technology, service or documentation to be licensed or otherwise shared with any third party.
8. DATA.
(a) Subscriber shall be solely responsible for the accuracy, quality, integrity and legality of its data, and the means by which it acquires its data (including, but not limited to, compliance with all applicable privacy, security, export and other legislation).
(b) The parties acknowledge that at all times Subscriber will remain the owner of data which it submits to the Helm Services, and which it generates through the use of the Helm Services. Helm Operations shall not use Subscriber’s data or disclose Subscriber’s data to any third parties, except that Helm Operations may:
(i) store, back-up and archive Subscriber’s data, either on its own servers or on servers owned by a third party service provider; and
(ii) use aggregated and/or derivative data generated from the use of the Helm Services, provided that Subscriber’s anonymity and confidentiality is maintained.
9. CONFIDENTIALITY.
(a) Each party agrees to hold all Confidential Information of the other party in strictest confidence, not to make use thereof other than for the performance of this Agreement, to disclose such Confidential Information only to its Representatives who are under an obligation of confidentiality with respect thereto and who require such information for the performance of their duties, and not to disclose such Confidential Information to any third parties, except with the disclosing party’s prior written consent; provided, however, that the foregoing restrictions shall not apply to Confidential Information of the other party:
(i) that is now or hereafter in the public domain through no action or failure to act on the part of the receiving party or its Representatives;
(ii) that was received by or was available to the receiving party from a third party without any obligation of confidentiality to the disclosing party;
(iii) that is independently developed by or for the receiving party by persons who have not had access to the Confidential Information of the disclosing party;
(iv) that is disclosed with the written consent of the disclosing party; or
(v) that is disclosed pursuant to the requirement of a governmental agency or is required by operation of law, regulation or court order provided that, whenever possible prompt notice is given by the receiving party to the disclosing party prior to such disclosure so that the disclosing party may seek a protective order or other remedy.
(b) Each party agrees to protect and safeguard Confidential Information of the other party from loss, theft, destruction and inadvertent disclosure using the same degree of care as it uses to protect its own confidential information of a like nature, but in no event less than a reasonable standard of care.
(c) Each party shall hold the other party’s Confidential Information in trust for the other party and all right, title and interest in and to such Confidential Information shall remain with the disclosing party.
(d) Upon termination of the Services, or otherwise upon the request of the disclosing party, the receiving party will promptly destroy all full and partial copies of the disclosing party’s Confidential Information in its possession or under its control, and certify such destruction in writing; provided, however, that the receiving party may retain one (1) copy for its internal archival purposes only, which copy shall remain subject to the obligations of confidentiality set out in this Section 9.
10. SUBSCRIBER LIABILITY .
Subscriber shall be solely responsible for, and shall hold Helm Operations and its Representatives harmless from any loss, damage or liability arising in connection with:
(a) Subscriber’s inputs, selection and use of the Helm Services, and all data, reports, statements and other content transmitted, posted, received or created on the Helm Operations System through Subscriber’s account, even if transmitted, posted, received or created by a third party;
(b) Subscriber’s or its Representatives’ misuse and failure to use, any data services required for the use of the Helm Services, including any abuse, fraudulent use or unauthorized access thereto;
(c) Any cause set out in Section 4 or 11(c);
(d) Any claim by a third party that Subscriber data or Subscriber’s use of the Helm Services in violation of this Agreement infringes or misappropriates the intellectual property rights of any third party; and/or
(e) Any breach by Subscriber and/or its Representatives of any of the terms and conditions of this Agreement.
11. REPRESENTATIONS AND WARRANTIES.
(a) Mutual warranties. Each party represents and warrants that:
(i) it is a company or other legal entity duly organized and validly existing under the laws of its jurisdiction of registration; and
(ii) it is duly authorized, and has the power and capacity to enter into this Agreement and to observe, perform and comply with the terms of this Agreement.
(b) Service Warranty.
Helm Operations further represents and warrants that the Helm Services and Support Services will substantially conform to the specifications set out in the Documentation and Order Form(s).
(c) The foregoing warranty shall not apply to Non-Conformities that result from any cause beyond the reasonable control of Helm Operations including, but not limited to:
(i) Subscriber ‘s failure to:
A. prepare and maintain a technical environment that meets the specifications provided by Helm Operations from time to time; or
B. provide necessary communications mechanisms as specified in writing by Helm Operations and agreed to by Subscriber from time to time;
(ii) the use of the Helm Services in combination with apparatus, systems, products or services which have not been approved in writing by Helm Operations;
(iii) unauthorized modifications or repairs to any equipment supplied by Helm Operations, by Subscriber or any person not approved by Helm Operations; or
(iv) failures relating to Subscriber ‘s computing environment including, without limitation, electrical failure, Internet connection problems, communications problems, or data or data input, output, integrity, storage, back-up, failure of firewalls and other security measures, and other external and/or infrastructure problems, which, as between Subscriber and Helm Operations, shall be deemed to be under Subscriber ‘s exclusive control and Subscriber’s sole responsibility.
(d) Helm Operations shall have no responsibility and provides no representations or warranties with respect to any third party hardware, software or services, whether supplied in connection with this Agreement or otherwise.
(e) If Subscriber notifies Helm Operations in writing of a breach of the limited warranty set out in (c), Helm Operations shall, at its cost and expense, use commercially reasonable efforts under the circumstances to correct the Non-Conformity within the period required under the Support Services, or such other period as may be agreed by the parties taking into account the nature and severity of the Non-Conformity.
12. EXCLUSION OF WARRANTIES .
(a) EXCEPT AS EXPRESSLY PROVIDED IN SECTION 11, AND IN THE PROFESSIONAL SERVICES AGREEMENT (IF ANY), THE SERVICES ARE PROVIDED “AS IS” WITHOUT WARRANTY OR REPRESENTATION OF ANY KIND. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HELM OPERATIONS AND ITS THIRD PARTY SUPPLIERS HEREBY DISCLAIM ALL OTHER REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, WHETHER ARISING UNDER STATUTE, FROM A COURSE OF DEALING, USAGE, CUSTOM OF THE TRADE OR OTHERWISE, REGARDING THE HELM SERVICES, THE DOCUMENTATION, OR ANY OTHER PRODUCTS OR SERVICES PROVIDED OR FAILED TO BE PROVIDED UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTY OR CONDITION OF MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, ACCESSIBILITY, PRIVACY OF FILES OR SECURITY.
(b) HELM OPERATIONS DOES NOT WARRANT THAT THE HELM SERVICES OR ANY OTHER PRODUCTS OR SERVICES PROVIDED HEREUNDER WILL BE UNAFFECTED BY BUGS, VIRUSES, ERRORS OR OTHER PROGRAM LIMITATIONS, NOR DOES HELM OPERATIONS WARRANT THAT SUBSCRIBER’S USE THEREOF WILL BE UNINTERRUPTED, ERROR-FREE OR WILL MEET ALL OF THE SUBCRIBER’S REQUIREMENTS; NOTWITHSTANDING THE FOREGOING, HELM OPERATIONS SHALL ADDRESS AND ENDEAVOR TO RESOLVE ANY BUGS, VIRUSES AND ERRORS THAT MAY ARISE IN THE HELM SERVICES SOFTWARE AT NO ADDITIONAL COST TO SUBSCRIBER.
(c) THIS LIMITED WARRANTY GIVES THE SUBSCRIBER SPECIFIC LEGAL RIGHTS. THE SUBSCRIBER MAY HAVE OTHER RIGHTS, WHICH VARY FROM LOCATION TO LOCATION, DEPENDING UPON THE APPLICABLE LAW OF SUCH LOCATION.
13. INTELLECTUAL PROPERTY INDEMNITY .
(a) Subject to the limitations of liability contained herein, Helm Operations will defend any claim or action brought against Subscriber alleging that the Helm Services, as supplied to Subscriber, infringe a Canadian or United States patent, copyright or trade secret, and shall indemnify and hold Subscriber harmless against resulting costs and damages awarded against Subscriber, provided that Subscriber: (i) promptly notifies Helm Operations in writing of the existence of claim or action; and (ii) allows Helm Operations sole control of the defence or settlement of the action; (iii) provides such reasonable cooperation as Helm Operations may require at Helm Operations’ sole expense. In no event will Subscriber consent to any judgement, agree to settlement, or do any other act in compromise of the claim or action, without Helm Operations’ express prior consent. Subscriber acknowledges that its failure to comply with the foregoing obligations may compromise Subscriber’s right to recovery under this Section 13. In no event will Helm Operations be liable for the payment of any amounts agreed to in settlement without its express consent.
(b) If, at any time, Helm Operations becomes aware of a potential infringement by the Helm Services, or if Subscriber is enjoined from its use of the Helm Services due to a proceeding based upon an alleged infringement, then Helm Operations may, at its option and expense, either: (i) procure for Subscriber the right to continue using the Helm Services; (ii) modify the Helm Services such that they are non-infringing and capable of performing as set out in the relevant specifications; (iii) replace the Helm Services with functionally equivalent, non-infringing services; or (iv) if satisfactory resolution of the matter employing the options described in (i), (ii) or (iii), above, is not possible despite Helm Operations’ reasonable commercial efforts, Helm Operations may terminate the Helm Services and refund any prepaid but unused portion of the license fees paid in respect thereof.
(c) Notwithstanding any other provision of this Agreement, Helm Operations will have no liability to Subscriber, and Subscriber shall defend and indemnify Helm Operations and its Representatives, to the extent that an actual or alleged infringement is based upon: (i) a modification to the Helm Services which has not been carried out by Helm Operations; (ii) any use, operation or combination of the Helm Services with any software, materials or data not supplied or approved by Helm Operations; or (iii) use of the Helm Services in a manner for which they were not intended or other than as permitted by under this Agreement .
(d) ENTIRE LIABILITY. THE FOREGOING CONSTITUTES THE ENTIRE LIABILITY OF HELM OPERATIONS WITH RESPECT TO INFRINGEMENT OF PATENTS, COPYRIGHTS, TRADE SECRETS AND OTHER INTELLECTUAL OR INDUSTRIAL PROPERTY RIGHTS BY THE SOFTWARE, SERVICES, DOCUMENTATION, AND RELATED MATERIALS SUPPLIED PURSUANT TO THIS AGREEMENT.
14. LIMITATION OF LIABILITY AND DAMAGES.
(a) TO THE MAXIMUM EXTENT PERMITTED BY LAW, HELM OPERATIONS’ AND ITS RESPRESENTATIVES’ TOTAL COLLECTIVE LIABILITY ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT, AND/OR ANY PRODUCTS OR SERVICES DELIVERED OR FAILED TO BE DELIVERED UNDER THIS AGREEMENT, SHALL BE LIMITED TO THE ACTUAL DIRECT DAMAGES SUFFERED BY SUBSCRIBER, NOT TO EXCEED THE AMOUNT ACTUALLY PAID BY SUBSCRIBER FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM. TOTAL AGGREGATE LIABILITY FOR ALL CLAIMS SHALL BE LIMITED TO AN AMOUNT EQUAL TO THE LESSER OF $100,000 OR THE TOTAL FEES ACTUALLY PAID BY SUBSCRIBER TO HELM OPERATIONS FOR THE HELM SERVICES DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE MOST RECENT CLAIM. IN NO EVENT WILL EITHER HELM OPERATIONS OR SUBSCRIBER BE LIABLE IN ANY WAY FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES OF ANY KIND WHATSOEVER, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF USE OF SYSTEMS OR EQUIPMENT, DATA, INCOME, BUSINESS, PROFIT, GOODWILL, ANTICIPATED REVENUE, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHERWISE.
(b) WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, DUE TO THE NATURE OF THE INTERNET, SUBSCRIBER AGREES THAT HELM OPERATIONS WILL NOT BE LIABLE FOR ANY LOSS, COSTS OR DAMAGES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH: ACCESS OR INTERCONNECTIONS WITH THE HELM OPERATIONS SYSTEM OR THE HELM SERVICES; ANY INTERRUPTION OR ERROR IN ROUTING OR COMPLETING CALLS OR OTHER TRANSMISSIONS; LOST OR ALTERED MESSAGES OR TRANSMISSIONS; OR UNAUTHORIZED ACCESS TO OR THEFT, ALTERATION, LOSS OR DESTRUCTION OF SUBSCRIBER’S CONTENT, DATA, PROGRAMS CONFIDENTIAL INFORMATION OR SYSTEM.
(c) NO ACTION, REGARDLESS OF FORM, ARISING OUT OF THIS AGREEMENT MAY BE BROUGHT BY SUBSCRIBER MORE THAN TWO (2) YEARS AFTER THE FACTS GIVING RISE TO THE CAUSE OF ACTION HAVE OCCURRED, REGARDLESS OF WHETHER THOSE FACTS BY THAT TIME ARE KNOWN TO, OR OUGHT REASONABLY TO HAVE BEEN DISCOVERED BY, SUBSCRIBER.
(d) THE FOREGOING LIMITATIONS SHALL APPLY REGARDLESS OF THE CAUSE OF ACTION, WHETHER ARISING UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE AND GROSS NEGLIGENCE), PRODUCT LIABILITY, INDEMNIFICATION, FUNDAMENTAL BREACH OR OTHERWISE, AND REGARDLESS OF WHETHER A PARTY AND/OR ITS REPRESENTATIVES KNEW, OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF SUCH DAMAGES.
(e) SUBSCRIBER AGREES THAT THE LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THIS AGREEMENT, WITHOUT WHICH HELM OPERATIONS WOULD NOT HAVE ENTERED INTO THIS AGREEMENT AND/OR AGREED TO PROVIDE THE SERVICES UNDER THE CURRENT TERMS (INCLUDING FEES).
(f) BECAUSE THE LAWS OF SOME LOCATIONS DO NOT ALLOW THE LIMITATION AND/OR EXCLUSION OF LIABILITY, THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO ALL SUBSCRIBERS.
15. TERMINATION.
(a) Either party may terminate this Agreement without cause after the initial term of one (1) year from the Activation Date, or as otherwise specified in the Order Form, upon not less than sixty (60) days written notice to the other party.
(b) If the Subscriber elects to use the Helm Services for a free trial period, but does not purchase a subscription before the end of such period, this Agreement will expire at the end of the free trial period.
(c) Either party may terminate this Agreement if the other party breaches any of its representations or warranties, or any other material obligation under this Agreement, and fails to remedy such breach with thirty (30) days of receipt of written notice from the non-breaching party. Helm Operations shall also have the right to suspend performance of all or any of the Services, without liability, pending the rectification of any breach by Subscriber.
(d) Either party may terminate this Agreement, immediately upon written notice, if the other party makes an assignment for the benefit of its creditors or becomes bankrupt, or makes an application for relief under the provisions of any statute now or hereafter in force concerning bankrupt or insolvent debtors, or if a receiving order or receivership order is made against the other party, or any action whatsoever, legislative or otherwise be taken to effect the winding up, dissolution, suspension of operations or liquidation of the other party.
(e) Without limiting any other remedies available under this Agreement, at law or in equity, in the event of the termination of this Agreement for any reason:
(i) Helm Operations’ obligation to provide the Services, and Subscriber’s license to use the Services, including the Helm Services software, will terminate;
(ii) All undisputed unpaid amounts due in respect of the terminated Services up to and including the effective date of termination shall, at Helm Operations’ option, become immediately due and payable;
(iii) Subject to Helm Operations’ right to set-off any amounts owing by Subscriber to Helm Operations, Helm Operations will refund to Subscriber any Fees which have been prepaid by Subscriber for any unused portion of the terminated Services;
(iv) Subscriber must take reasonable steps to destroy any copies of the Documentation and any Helm Operations Confidential Information in Subscriber’s possession, in any form and on any media, and certify to Helm Operations in writing that it has done so;
(v) Subscriber may request that Helm Operations provide a copy of all of Subscriber ‘s data stored in the Helm Operations System in a CSV file format at Helm Operations’ standard fee therefor, as established by Helm Operations from time to time. Any such request shall be made in writing within fifteen (15) days of the effective date of termination;
(vi) Helm Operations may, at its sole discretion, destroy any Subscriber data remaining on the Helm Operations System after either:
A. receiving confirmation that Subscriber has a copy of any remaining data;
B. providing Subscriber with a copy of any remaining data pursuant to Section 15(e)(v) ; or
C. 60 days after the expiration or termination of this Agreement;
(vii) Any termination will be without prejudice to the accrued rights and liabilities of either party arising prior to the termination of this Agreement. The termination will not affect the coming into force or the continuation in force of any term which is expressly or by implication intended to come into or continue in force after any termination;
(viii) All provisions of this Agreement in favor of Helm Operations and all rights and remedies of Helm Operations, whether in law or in equity, will survive termination. Further, Sections 4(e), 7,8, 9, 10, 11(a), 11(b), 13, 14, 15(d), 16, 17(a), 17(f), 17(i) and 17(k) shall survive the expiration or termination of this Agreement until such time as the parties may agree to the release of the obligations contained therein;
(ix) Subscriber must return any hardware devices provided by Helm Operations by courier within 15 days following the expiration or termination of this Agreement; and
(x) Subscriber must delete any copies of the Helm Operations System that have been hosted on-premise by Subscriber, or that is otherwise in Subscriber’s possession or under its control, in any form and on any media, and certify to Helm Operations in writing that it has done so within 15 days of the expiration or termination of this Agreement.
16. DISPUTE RESOLUTION / EQUITABLE RELIEF
(a) Disputes. Except as specifically provided in Section 16(b), all disputes, controversies or claims arising out of or in connection with this Agreement (including any Statement of Work), whether in contract, tort, statute, or other theory of liability (“Disputes”), shall be resolved in accordance with this provision: Prior to commencing any legal proceeding in connection with a Dispute, the party desiring to commence the proceeding shall deliver written notice (a “Dispute Notice”) to the other party setting forth the nature of the dispute, and request a meeting of senior executives of both parties in order to endeavour to settle the Dispute in good faith. Both parties shall promptly designate at least one senior executive (Vice President or higher) having authority to settle such Dispute to meet and discuss the Dispute with the senior executive from other party. If the parties’ senior executives are unable to resolve the Dispute within thirty (30) days (or such other longer period as the parties may agree), then either party may, upon written notice to the other party, refer the Dispute for settlement by arbitration before a single arbitrator in accordance with the rules of the American Arbitration Association. The costs of the arbitrator will be borne equally by the parties, but they will otherwise bear their respective costs incurred in connection with the arbitration. The parties shall select the arbitrator promptly and use commercially reasonable efforts to conduct the arbitration hearing no later than three (3) months after the arbitrator is selected. The arbitrator may not award punitive or exemplary damages against either party, or any other relief in excess of the limitations set forth herein. The judgment and award of the arbitrator will be final and binding on both parties. . The arbitrator’s judgment and award may be entered in any court having jurisdiction, or application may be made to such court for judicial acceptance of the award and/or for an order of enforcement, as the case may be. No action, regardless of form, arising out of or in connection with this Agreement may be brought by Subscriber more than two (2) years after the occurrence of the event giving rise to the cause of action, regardless of whether the Subscriber was aware or ought reasonably to have been aware of the event.
(b) Equitable Relief. Notwithstanding the provisions of Section 16(a), above, Subscriber acknowledges and agrees that any breach of this Agreement could cause irreparable harm and significant injury to Helm Operations that may be difficult or impossible to remedy. Accordingly, the parties agree that Helm Operations will have the right to obtain immediate injunctive or other equitable relief in any court having competent jurisdiction, in order to enforce its rights and/or protect its interests under this Agreement, without the necessity of showing or proving any actual damage or posting bond or other security. This right shall be in addition to all other rights and remedies that Helm Operations may have at law and in equity.
(c) Seat of Arbitration. The seat of arbitration shall be the State of New York, USA with respect to any Dispute. The language used for the arbitration shall be English. Each party shall have the right to have its own interpreters, lawyers and legal advisers present through the arbitration.
17. GENERAL PROVISIONS.
(a) Governing Law. This Agreement shall be construed, interpreted and enforced in accordance with, and the respective rights and obligations of the parties shall be governed by, the laws of the State of New York, USA. The parties expressly exclude the application of the Convention of The Hague regarding the Unification of Law Governing the International Sale of Goods (1964), and the United Nations Convention on Contracts for the International Sale of Goods (the “Vienna Convention”).
(b) Assignment. Neither party will assign or transfer this Agreement, or any rights or obligations thereunder, in whole or in part, without the prior written consent of the other party; provided, however, that Helm Operations or Subscriber may assign this Agreement to its Affiliates upon notice to the other party, and Helm Operations may assign this Agreement to a legal successor in the case of a merger, acquisition or sale of all or substantially all of its shares. Consent to an assignment, when required, shall not be unreasonably withheld or delayed. This Agreement will ensure to the benefit of, and be binding upon, the parties and their respective successors and permitted assigns.
(c) Entire Agreement. Subscriber acknowledges that this Agreement (including the accepted Order Form(s)), and the applicable Support and Maintenance Service Description, comprise the entire understanding and agreement between parties regarding the Helm Services and the Support Services, and supersedes all prior written and oral agreements, purchase orders, representations, understandings, promises, descriptions or other communications between the parties regarding its subject matter.
(d) Force Majeure. Neither party shall be liable for delay or failure in performance (other than the payment of any monies due) resulting from acts beyond the control of such party, including, but not limited to acts of God, acts of war, riot, fire, flood, or other disaster, acts of government, strike lockout, power failures, or the inability to use or the failure of any third party telecommunications carrier or other services (“Force Majeure”), which events or conditions prevent in whole or in part the performance by such party of its obligations hereunder or which renders the performance of such obligations so difficult or costly as to make performance commercially unreasonable. In such event, the party affected shall be excused from performance on a day-to-day basis to the extent of the delay, and the other party shall likewise be excused from the performance of its obligations on a day-for-day basis to the extent such party’s obligations related to the performance are so delayed. In the event that a party is prevented from performing its obligations due to an event of Force Majeure for a period in excess of 60 days, either party may terminate the affected Statement of Work without liability except as provided in 5(e).
(e) Independent Contractors. The parties are and shall remain independent contractors. This Agreement will not be interpreted or construed so as to create any relationship of employment, agency, joint ventures or partnership between the parties, or to impose any liability attributable to such a relationship upon either party.
(f) Non-Solicitation. During the term of this Agreement, and for a period of one (1) year after its expiration or termination, neither party will, directly or indirectly, hire or solicit for hire the other party’s employees, and will not directly or indirectly, whether as principal, agent, or employee of, or in partnership or association with, any person, firm or corporation, or in any manner whatsoever, entice, encourage, induce or attempt to induce or otherwise ask the other party’s employees to leave their current employment.
(g) Notices. All communications and notices provided for herein shall be in writing and shall be deemed to have been given when delivered personally to the recipient, by acknowledged email, commercial courier, or by registered or certified mail with return receipt requested, postage prepaid, and addressed to the applicable signatory at the address appearing on the Order Form(s) or at such other address as either party may designate by notice to the other.
(h) No Waiver. No provision of this Agreement and no breach by either party of any such provision will be considered to have been waived unless such waiver is in writing and signed by the other party. The written waiver by either party of any breach by the other party of any provision of this Agreement will not be deemed to be a waiver of such provision, or of any subsequent breach by the other party of the same or any other provision of this Agreement.
(i) Publicity. Except as expressly permitted in Section 9 (“Confidentiality”), neither party shall issue any press release, or otherwise publicly identify the other as a Subscriber or supplier, in any marketing materials or otherwise, without the express prior authorization of the other party.
(j) Severability. If any provision contained in this Agreement is found by a court of competent jurisdiction to be invalid, illegal or unenforceable in any respect, it shall be deemed to have been severed from this Agreement, and the remaining provisions of this Agreement shall not be in any way affected or impaired thereby and shall continue in full force and effect.
(k) Export Control. The Helm Services and other technology made available by Helm Operations, including any modifications or derivatives thereof, may be subject to the export control laws of Canada, the United States and other jurisdictions. Subscriber warrants that it and its affiliates are not named on any Canadian or United States government restricted party list, and agrees that it will not use, access or permit the use or access of the Helm Services, or any other technology or materials supplied by Helm Operations, in violation of any applicable Canadian or United States laws or regulations.
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