CERTUS TRADING INC. (“Certus”)
ONLINE SUBSCRIPTION AGREEMENT
1.1 “Affiliates” means any entity which directly or indirectly, through one or more intermediaries, controls, or is controlled by, or is under common control with a party, by way of majority voting stock ownership or the ability to otherwise direct or cause the direction of the management and policies of a party.
1.2 “Content” means any training material, online documentation or content provided by Certus to Client as a part of or in connection with the Service.
1.3 “Electronic Communications” means any transfer of signs, signals, text, images, sounds, data or intelligence of any nature transmitted in whole or part electronically received and/or transmitted through the Service.
1.4 “Help Documentation” means the online information Certus makes available to Clients describing the features of the Service, including User Guides if applicable, which may be updated from time to time.
1.5 “Service” means the subscription service provided by Certus that Client selected on the Order Form.
1.6 “Third Party Applications” means online, Web-based applications or services and offline software products that are provided by third parties and interoperate with the Service.
1.7 “User Guides” means online user guides, video tutorials and written documentation, if applicable, included as part of the Service, as may be updated by Certus from time to time.
2. SUBSCRIPTION SERVICE AND SUPPORT
2.1 Certus will provide Client with the Service subject to the terms of this Agreement.
2.2 Certus may authorize access to and assign unique passwords and user identifications to Client in order for Client to access the Service. User identifications cannot be shared, transferred or used by anyone other than the Client to whom issued, and Certus reserves the right to take such reasonable steps as are necessary to enforce this restriction. Client will be responsible for the confidentiality and use of passwords and user identifications. Client will also be responsible for all Electronic Communications through the Service using Client’s account. Certus will act on any instructions it receives by email or by Electronic Communications, if applicable, sent using Client’s passwords, user identifications, and/or account number.
2.3 Client acknowledges that the provision by the Certus of the Service and/or Content is not, and shall not be treated as, any advertisement or offer for, or solicitation or recommendation to buy or sell, any securities or any other financial products. Certus’ provision of the Service in no way suggests or implies an opinion by the Certus or its third-party licensors as to the attractiveness of investment in any securities or any other financial products. Certus does not provide or guarantee any financial, legal, tax or accounting advice or advice regarding the suitability, profitability or potential value of any particular investment, security or information source.
2.4 Certus will provide Client with Help Documentation and other online resources to assist Client in its use of the Service. Certus operates a help desk providing Clients with email access to support personnel. Certus endeavours to respond to any email requests for customer support within 48 hours of Certus’ receipt of Clients email request.
3. RESTRICTIONS AND RESPONSIBILITIES
3.1 Content. Certus grants Client a limited non-exclusive, non-transferable license to use and display on your computer or other electronic access device, the Content and for your own personal and non-commercial use only, provided that you maintain all copyright and other proprietary notices. Except as provided herein, you agree not to reproduce, make derivative works of, retransmit, distribute, sell, publish, communicate, broadcast or otherwise make available any of the Content.
3.2 Software. Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Service or any software, documentation or data related to the Service (“Software”); modify, translate, or create derivative works based on the Service or any Software (except to the extent expressly permitted by Certus or authorized within the Service) use the Service or any Software for timesharing or service bureau purposes or otherwise for the benefit of a third party; or remove any proprietary notices or labels.
3.3 Client will not in any way express or imply that any comments or opinions contained in Client’s Electronic Communications to third parties are endorsed by Certus.
3.4 Client represents, covenants, and warrants that Client will use the Service only in compliance with all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless Certus against any damages, losses, liabilities, settlements, and expenses (including without limitation costs and reasonable attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Client’s use of Service. Although Certus has no obligation to monitor Client’s use of the Service, Certus may do so and may prohibit any use of the Service it believes may be (or alleged to be) in violation of the foregoing.
3.5 Client shall be responsible for obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Service, including, without limitation, modems, hardware, servers, software, operating systems, networking, web servers and the like (collectively, “Equipment”). Client shall also be responsible for maintaining the security of the Equipment, Client account, passwords (including but not limited to administrative and user passwords) and files and shall be liable for all uses of Client’s account or the Equipment, with or without Client’s knowledge or consent.
3.6 Certus has the right collect and analyze data and other information relating to the provision, use and performance of various aspects of the Service and related systems and technologies and Certus will be free to (i) use such information and data to improve and enhance the Service and for other development, diagnostic and corrective purposes in connection with the Service and other Certus offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. INTELLECTUAL PROPERTY
4.1 Certus is the exclusive owner and/or licensee of the Content and retains all proprietary rights in and to such Content, including all copyrighted material, and other proprietary information of Certus and its licensors. Except for that information which is in the public domain or for which Client has been given written permission, Client may not copy, modify, publish, transmit, distribute, perform, display, or sell any such proprietary information.
4.2 Certus trade-marks, service marks, logos and product and service names are marks of Certus (the “Certus Marks”). Client agrees not to display or use the Certus Marks in any manner without Certus’s express prior written permission. The trade-marks, logos and service marks of any third party application providers (“Marks”) are the property of such third parties. Client is not permitted to use these Marks without the prior written consent of the third party which owns the Mark.
6. TERM AND TERMINATION
6.1 Clients’ subscription is for the term indicated in the Order Form (“the Term”). Client may terminate a subscription prior to the end of the Term for any reason, however, Client will not receive any form of pro-rata refund.
6.2 Certus may at any time, and without any liability to Client (save in respect of a pro-rata refund of any pre-paid charges) terminate or suspend the provision of the Service (or part of it) if the provision of such Service:
- is dependent on the supply of information or service by a third party and the third party does not supply such information or service for any reason;
- becomes illegal, or contrary to any applicable laws;
- is subject to a claim or allegation that the Client or the provision or use of such Service infringes the intellectual property rights of a third party;
- is generally suspended or terminated by the Licensor across its business; or
- cannot be provided on reasonably similar terms due to any reason beyond the Licensor’s reasonable control.
6.3 Either Party shall have the right to immediately terminate this Agreement for a material breach of the other party unless such breach is (i) capable of being and (ii) is, corrected within 20 business days of written notification of such breach by the non-breaching party. For the purposes hereof, “material breach” means a failure in any material respect to perform, keep or observe any of the terms, covenants or conditions herein required to be performed, kept or observed on the part of such party.
6.4 All sections of this Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. WARRANTY AND DISCLAIMER
7.1 Certus shall use reasonable efforts consistent with prevailing industry standards to provide the Service in accordance with the Help Documentation and in a manner, which minimizes errors and interruptions in the Service. The Service may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Certus or by third-party providers, or because of other causes beyond Certus’s reasonable control, but Certus shall use reasonable efforts to provide at least 72 hours’ advance notice by email of any scheduled service disruption.
7.2 Certus warrants that the Service will include all training and online services described in the Help Documentation. Client’s sole and exclusive remedy for Certus’s breach of this warranty shall be that Certus shall use commercially reasonable efforts to provide the functionality described in the Help Documentation and, if Certus is unable to restore such functionality, Client shall be entitled to terminate the Service and receive a pro-rata refund of the pre-paid subscription fees. Certus shall have no obligation with respect to a warranty claim unless notified of such claim within sixty (60) days of the first instance of any material functionality problem.
7.3 EXCEPT AS STATED AT CLAUSE 7.1 AND 7.2 ABOVE, CERTUS DOES NOT WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICE IS PROVIDED “AS IS” AND CERTUS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, CERTUS AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICE OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND CERTUS’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE SUBSCRIPTION FEES PAID BY CLIENT TO CERTUS FOR THE SERVICE UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT CERTUS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9. CERTUS INDEMNITY
9.1 Certus shall indemnify Client and its Affiliates (including their respective directors, officers, employees, agents and partners) in respect of any losses, damages, liabilities, costs, fees and expenses whatsoever, including reasonable legal fees and disbursements (“Losses”) incurred by them as a direct result of any third-party claim: (i) arising out of any property damage, personal injury, or death arising out of any act or omissions of Certus; or (ii) alleging that the Service provided by Certus hereunder infringe any intellectual property rights. Certus shall have no liability for any claim of infringement that is based on (iii) Client’s use of the Service in violation of this Agreement or applicable law, (iv) the use or combination of the Service with software, hardware, services, or any other product or intellectual property, not provided by Certus, or (v) use of the Service after Certus notifies Client to discontinue use because of an infringement claim.
9.2 If an infringement claim subject to the indemnification obligation in Section 9.1 above is brought or threatened, Certus shall, at its sole option and expense, use commercially reasonable efforts to: (a) procure a licence that will protect Client against such claim without cost to Client; (b) modify or replace all or portions of the Service as needed to avoid infringement, such update or replacement having substantially similar or better capabilities; or (c) if (a) and (b) are not commercially feasible, terminate the subscription and refund to the Client a pro-rata refund of any pre-paid subscription fees. The rights and remedies granted Client under this Section 9.2 shall be Certus’s entire liability, and Client’s exclusive remedy, with respect to any infringement claim.
10. CLIENT INDEMNITY
Client shall indemnify Certus from and against all claims arising out of Client’s breach of clause 3.4 above (Client’s Lawful Conduct) and shall hold Certus harmless from and against liability for any Losses to the extent based upon such claims. If any malicious code enters the Service through Client-uploaded material or otherwise originates from Client, Client shall indemnify Certus for any resulting damage and shall, at its own expense, defend Certus from and against all claims by other clients of Certus or third parties alleging damage as a result of such malicious code.
11.1 If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable.
11.2 Client’s subscription is not assignable, transferable or sublicensable by Client except with Certus’s prior written consent. Certus may transfer and assign any of its rights and obligations this Agreement without consent.
11.3 This Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications, and other understandings, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
11.4 All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by Electronic Communication to the e-mail address provided by Client; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the Province of Ontario and the Federal laws of Canada applicable therein, without regard to conflict of laws provision.
Updated on March 1, 2021