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By clicking “Accept” or otherwise signing an order form and/or agreement that incorporates these terms and conditions by reference, you are entering into an agreement with Capio Inc. (“Company”, “us”, “we”, “our”, together with you, the “Parties” and each of you or us, a “Party”), under which you will be bound by the following terms and conditions (the “Terms and Conditions”).
By agreeing to these Terms and Conditions, you represent that you have reached the age of majority in your jurisdiction, you have the capacity to enter into binding obligations, are the authorized representative of an organization, and all information you supply to us is true, accurate, current and complete.
Services
These Terms and Conditions apply to your access to and use of Company’s services, including all products, services, professional services, integrations and solutions offered by us to you and/or to our student applicants (“Services”). Subject to your compliance with these Terms and Conditions, we will use commercially reasonable efforts to provide you the Services ordered in an order form.
The order form will specify, among other things, the Services to be provided by us and applicable fees for such Services (“Order Form”). Each Service specified in an Order Form will be provided for the service term stated in the applicable Order Form. Services will be subject to these Terms and Conditions, including any service-specific terms and conditions which may be included in, appended to or incorporated by reference into, the applicable Order Form.
The Services may be made available to you through a number of channels, including an online portal, platform, dashboard or other technology solution (“Portal”). You will comply with all applicable documentation governing your channel of use and its content (such information, data, material and content which may be made available or displayed in the Portal, “Content”).
We may require your cooperation in order to provide the Services, and you will provide such good faith reasonable cooperation as we may request.
Client Data
You own and retain all right, title, and interest to, or has appropriate possessory rights in any information, data, results, or other materials uploaded to or through the Services (“Client Data”). We make no claim of title or ownership to or in Client Data. You permit us to use Client Data to the extent required to provide and perform the Services under this Agreement. We will not use Client Data to contact any individual or company or for any other purpose, except as set out in this Agreement without the express written consent of you. Client Data does not include Content.
You are responsible for the accuracy, quality and legality of Client Data, the means and collection of appropriate and/or required consent by which you acquired Client Data, and your use of Client Data with the Service and you represent and warrant that you have all sufficient and necessary rights and permissions to do so.
Fees, Invoicing, Payment and Taxes
Fees
You will pay all fees specified in Order Forms. Fees are payable in the currency specified in the Order Form. In pursuit of our mission to provide our clients with continuous and innovative enhancements to our services, over time our fees must increase to cover additional product development expenses associated with improving our services. The fees for the first pricing period shall be invoiced as set out on an Order Form. For fixed fee engagements, unless otherwise stated, all subsequent pricing periods include a 9% annual increase (“Annual Increase”).
Invoicing and Payment
We will invoice you at the timing and frequency set out in the applicable Order Form. Unless otherwise stated in the Order Form, all invoiced fees are due net-30 days from the invoice date. Overdue amounts not subject to a good faith dispute may incur interest charges at a rate of 1.5% per month or 19.56% APR. All amounts paid are non-refundable unless explicitly stated otherwise. You are responsible for providing complete and accurate billing and contact information to us and notifying us of any changes to such information.
Invoice disputes
If you wish to raise a good faith dispute with respect to an invoice, you must do so within fifteen (15) days of receiving an invoice by notifying us thereof. In such a case, the Parties work cooperatively in good faith to resolve the dispute.
Taxes
Our fees set out in these Terms and Conditions do not include any taxes, levies, duties or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes assessable by any jurisdiction whatsoever (“Taxes”). You are responsible for paying all Taxes associated with Services ordered in an Order Form. If we have the legal obligation to pay or collect Taxes that you are responsible for under this section, we will invoice you for the Taxes and you will pay the amounts.
Confidentiality and Privacy
For purposes of these Terms and Conditions, “Confidential Information” means any and all information of yours or ours (the “Disclosing Party”) or any of your or our licensors, customers, employees or other service providers that have come or will come into the possession or knowledge of the other Party (the “Receiving Party”) in connection with or as a result of entering into these Terms and Conditions or provision or receipt of Services under these Terms and Conditions. Confidential Information includes, without limitation, industry data and information concerning the Disclosing Party’s past, present or future customers, recruitment partners, agents, student information, suppliers, technologies, systems, products, strategies, business models or processes. For greater certainty, these Terms and Conditions, the Portal, the Content, and any software (in object code or source code) and documentation with respect thereto made available to you under these Terms and Conditions constitute Confidential Information of ours, as Disclosing Party.
Confidential Information does not include any information that: (i) is or becomes generally available to the public other than as a result of Receiving Party’s breach of the confidentiality obligations herein; (ii) is or becomes available to Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; (iii) was in Receiving Party’s possession prior to Disclosing Party’s disclosure thereof; (iv) was or is independently developed by Receiving Party without using any of Disclosing Party’s Confidential Information; or (v) is subject to applicable freedom of information or other legislation which requires public disclosure, only when and to the limited extent that disclosure is required under such laws.
Receiving Party shall: (i) protect and safeguard the confidentiality of Disclosing Party’s Confidential Information with at least the same degree of care as Receiving Party would protect its own Confidential Information, and in no event with less than a commercially-reasonable degree of care; (ii) only use Disclosing Party’s Confidential Information, and only permit it to be accessed or used, for the purpose of exercising its rights or performing its obligations under these Terms and Conditions; and (iii) except as authorized by Disclosing Party in writing, limit access to Disclosing Party’s Confidential Information to those of its and its affiliates’ directors, officers, employees and third party contractors who need that access for purposes consistent with these Terms and Conditions and who are bound by confidentiality obligations materially as protective as the confidentiality obligations herein. If Receiving Party becomes aware of any loss of or unauthorized access to or disclosure of Disclosing Party’s Confidential Information, Receiving Party will promptly notify Disclosing Party.
If Receiving Party is required by applicable law or legal process to disclose any of Disclosing Party’s Confidential Information, it will, prior to making such disclosure, use commercially reasonable efforts to notify Disclosing Party of such requirements to afford Disclosing Party the opportunity to seek, at Disclosing Party’s sole cost and expense, a protective order or other remedy.
Each Party acknowledges that the other Party will be irreparably harmed if their Confidential Information is disclosed in breach of the confidentiality obligations herein and that such other Party would not have an adequate remedy at law in the event of such an actual or threatened breach. Therefore, each of the Parties agrees that the other Party will be entitled to seek injunctive relief against any actual or threatened breaches of the confidentiality obligations herein by the other Party without needing to show actual damages or that monetary damages would not afford an adequate remedy.
When these Terms and Conditions expire or terminate, each Party (as a Receiving Party) will securely destroy or, at the other Party’s (as a Disclosing Party) request, deliver to Disclosing Party all Confidential Information of Disclosing Party in Receiving Party’s control or possession, promptly after the effective date of termination, except to the extent Receiving Party is required to maintain a copy to comply with applicable law or during the period of any dispute between the Parties for the purposes of such dispute, provided that Receiving Party will continue to abide by any confidentiality obligations in these Terms and Conditions.
Unless otherwise specified in these Terms and Conditions, any information relating to an identified or identifiable individual (“Personal Information”) regarding students processed by a Party in connection with these Terms and Conditions will be processed by the Party in accordance with its applicable privacy policies and procedures and legal and regulatory obligations which apply to it as a data controller or equivalent term or concept under applicable laws. These Terms and Conditions expressly incorporate by reference the applicable data processing agreement applicable to your product(s) which are available and may be updated from time to time at here. We have each appointed a privacy officer who is responsible for overseeing compliance with our obligations under these Terms and Conditions and applicable privacy laws. Our privacy officer can be reached at DPO@capio.app.
Representations and Warranties
Each Party represents, warrants and covenants to the other Party that: (i) it has the right and authority to enter into these Terms and Conditions and to grant all rights granted by such Party in these Terms and Conditions; and (ii) will perform all obligations under these Terms and Conditions in accordance with applicable laws and regulations.
We represent, warrant and covenant to you that in providing the Services, we will exercise a degree of care commensurate with an experienced provider of such Services.
THE SERVICES, THE PORTAL AND THE CONTENT ARE PROVIDED ON AN “AS IS”, “WHERE IS” AND “AS AVAILABLE” BASIS WITH ALL FAULTS AND WITHOUT ANY WARRANTIES, REPRESENTATIONS OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, QUALITY, COMPLETENESS, QUIET ENJOYMENT, RELIABILITY, ACCURACY, CURRENCY, TIMELINESS, SECURITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE.
Indemnification
Indemnification by Company. We will defend you against any claim, demand, suit or proceeding made or brought against you by a third party alleging that any Service ordered by you under an Order Form made hereunder infringes or misappropriates such third party’s intellectual property rights, and will indemnify you from any damages, attorney fees and costs finally awarded against you as a result of, or for amounts paid by you under a settlement approved by us in writing of, such a claim as described in this Section, provided that you (a) promptly give us written notice of such claim, (b) gives us sole control of the defense and settlement of the claim (except that we may not settle any such claim unless it unconditionally releases you of all liability), and (c) gives us all reasonable assistance, at our expense. If the Service or the Content, or any part thereof becomes, or, in our opinion is likely to become, the subject of a third party claim alleging infringement or misappropriation of intellectual property rights, we may, at its discretion: (i) procure the right for you to continue using the allegedly infringing Service; (ii) update or modify the allegedly infringing Service so that it becomes non-infringing; or (iii) terminate the subscription for the allegedly infringing Service and refund to you any prepaid fees for Service not provided due to the early termination of the Agreement. Notwithstanding the foregoing, the defense and indemnification obligations set out above do not apply if (I) the allegation does not state with specificity that the Service are the basis of the claim; (II) the claim arises from the use or combination of the Service or any part thereof with software, hardware, data, or processes not provided by us, if the Service or use thereof would not infringe without such combination; (III) the claim arises from Service provided without charge; or (IV) the claim arises in connection with your breach of the Agreement.
Indemnification by Client. You will defend us and our affiliates against any claim, demand, suit or proceeding made or brought against us by a third party arising in connection with: (a) your use of a non-Company application, component, software or service made available by a third party which you has chosen to use or integrate with a Service (a “Third Party Application”) (including any allegation that the combination of a Third Party Application and the Service infringes or misappropriates a third party’s intellectual property rights), (b) your use of the Service or Content in violation of applicable law; (c) your breach of the Agreement; or (d) Client Data or your use thereof with a Service, and will indemnify us from any damages, attorney fees and costs finally awarded against us as a result of, or for any amounts paid by us under a settlement approved by you in writing of, a a claim described in this Section, provided us (i) promptly gives you written notice of such claim, (ii) gives you sole control of the defense and settlement of the claim (except that you may not settle any such claim unless it unconditionally releases us of all liability), and (iii) gives you all reasonable assistance, at your expense. The above defense and indemnification obligations do not apply if the claim arises from our breach of the Agreement.
Exclusive Remedy. This “Indemnification” section states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any third-party claim described in this section.
Limitations of Liability
Except in the case of wilful misconduct, fraud or criminal acts, in no event will the aggregate liability of a Party together with all of its affiliates arising out of or in connection with these Terms and Conditions or the Services provided hereunder exceed the total amount paid by you under these Terms and Conditions in the twelve (12) months preceding the first incident out of which liability arose. The foregoing limitation will apply whether an action is based in contract, tort, negligence, strict liability or any other legal theory but will not limit your obligation to pay fees owing hereunder. For certainty, the existence of one or more claims under these Terms and Conditions will not increase the limitation of liability.
In no event will either Party or its affiliates have any liability arising out of or in connection with these Terms and Conditions or the Services provided hereunder for any loss of profits, loss of revenues, loss of opportunity, loss of use, loss of data, loss of business or loss of goodwill, or for any fines or penalties, or for any indirect, special, incidental, consequential, cover, business interruption or punitive damages, whether an action is based in contract, tort, negligence, strict liability or any other legal theory, even if a Party or its affiliates have been advised of the possibility of such damages. The foregoing disclaimer will not apply to the extent prohibited by law.
Term and Termination
Term of Agreement
The term of these Terms and Conditions will commence on the date you accepted these Terms and Conditions and will continue until terminated in accordance with these Terms and Conditions.
Term of Ordered Services
The initial service term of each Service ordered will be as specified in the applicable Order Form. Unless explicitly stated otherwise in an Order Form, the service term for each Service will automatically renew for additional one (1) year periods at list price, unless either Party provides written notice of its intent not to renew at least ninety (90) days before the last day of the relevant service term.
Termination for Cause
Either Party may terminate these Terms and Conditions (or only the Order Form for the impacted Service) immediately for cause by providing notice to the other Party (i) if the other Party commits a material breach of any obligation in these Terms and Conditions which is not cured by the breaching Party within thirty (30) days of receipt of notice from the non-breaching Party of the breach; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
Other Terms Relating to Termination
If these Terms and Conditions are terminated by us pursuant to the “Termination for Cause” section above, you will pay any unpaid fees in respect of the remainder of the service terms for all Order Forms. If these Terms and Conditions are terminated by you pursuant to the “Termination for Cause” section above, you will pay any unpaid fees in respect of Services provided up to the effective date of termination. For certainty, in no event will termination (whether by us or you) relieve you of your obligation to pay any fees payable to us for Services rendered in the period prior to the effective date of termination.
Survival
Rights and obligations which have accrued or arisen under these Terms and Conditions will survive the expiration or termination of these Terms and Conditions without prejudice. All provisions of these Terms and Conditions which by their nature should survive to give effect to the Terms and Conditions, will survive termination or expiration, including confidentiality, limitations and exclusions of liability, obligations on termination, survival, intellectual property and governing law.
Intellectual Property
Subject to these Terms and Conditions, you grant us, during the term of these Terms and Conditions: (i) a nonexclusive and revocable license to use, reproduce and display your trademarks and service marks (the “Trademarks”) and enable our employees and independent contractors to use such Trademarks solely for the purposes of providing the Services and promotional materials, and in accordance with any trademark guidelines provided by you to us from time-to-time; and (ii) access and use your materials containing the Trademarks accessible online via your URLs. Any goodwill arising from our use of the Trademarks will accrue to you. At your written request, we will modify or remove any Trademarks used or displayed in order to provide the Services.
Nothing in these Terms and Conditions will affect each of our ownership of and rights to our respective intellectual property (or the intellectual property rights of each of our respective licensors). You acknowledge and agree that the Services, the Portal, all Content, and all related documentation (in each case, other than any Trademarks which may be incorporated therein) and all software, algorithms, code, technology and intellectual property underlying or included within the foregoing, and all intellectual property rights therein and thereto throughout the world are our sole and exclusive property, our affiliates and their respective licensors. We both acknowledge and agree that we do not acquire any intellectual property or other proprietary rights under these Terms and Conditions, including any right, title or interest in and to patents, copyrights, trademarks, industrial designs, confidential information, or trade secrets, whether registered or unregistered, relating to the intellectual property of the other Party, its affiliates and their respective licensors, other than as expressly set out in these Terms and Conditions. Any rights not expressly granted under these Terms and Conditions are reserved. We, our affiliates and their respective licensors’ rights extend to all enhancements, updates and modifications to Services, the Portal and the Content, regardless of who created or developed such enhancements, updates or modifications. You acknowledge and agree that we are not bound by any duty of confidentiality with respect to any such enhancements, updates and modifications.
We may collect and use data, information, or insights generated or derived from our provision and your receipt of the Services (“Usage Data”) for our business purposes, including industry analysis, benchmarking, analytics, marketing, training, and improving and developing our products and services. We will de-identify and anonymize all Usage Data, and will disclose such Usage Data in aggregate form only in a manner that does not identify you or your Confidential Information. All individual data elements of the Usage Data are property of their respective owners. All Usage Data is wholly owned by us.
If a Service, the Portal, Content, or any part thereof becomes, or, in our opinion is likely to become, the subject of a third party claim alleging infringement or misappropriation of intellectual property rights, we may, at our discretion and at no cost to you: (i) procure the right for you to continue using the allegedly infringing component; (ii) replace or modify the allegedly infringing component so that it becomes non-infringing; or (iii) terminate or discontinue the allegedly infringing aspect of the Service, Portal or Content, without being liable to you.
You may provide us with feedback related to your use of the Services and, to the extent made available, the Portal, including suggestions for new content and features, and will use best efforts to promptly report to us any errors, bugs or difficulties with the Portal along with any other information reasonably requested by us to aid in resolving such errors, bugs or difficulties (collectively, “Feedback”). You agree that: (i) Feedback constitutes our Confidential Information; (ii) Feedback is not proprietary information of you or any third party and you have all of the necessary rights to disclose the Feedback; (iii) we may freely use, publicize, license, distribute, and otherwise commercialize Feedback for any other purpose without restriction (although, for certainty, any disclosure of Feedback will not name you) ; and (iv) you are not entitled to receive any compensation of any kind in respect of the Feedback.
General
Assignment
Either of us may assign these Terms and Conditions to our affiliate or in connection with a merger, acquisition, corporate reorganization or sale of all or substantially all of our assets. Other than the assignments permitted in the foregoing sentence, neither of us will assign these Terms and Conditions without the other Party’s prior written consent (not to be unreasonably withheld). These Terms and Conditions will enure to the benefit of our successors and permitted assigns.
Third Party Service Providers
You acknowledge and agree that in delivering the Services and performing our obligations, we may engage and/or work with third parties, including but not limited to independent contractors, third party contractors and Company group companies which are located internationally. If we use a third party as part of the provision of the Services, you acknowledge that the Services are provided to you by us and not by any third party. Our use of a third party in providing the Services and/or performing our obligations will not relieve us of our obligations to you under these Terms and Conditions. Further, the Portal and Services made available to you may contain or incorporate embedded third party software, which may only be used in conjunction with the Portal and Services and may not be used separately.
Optional Third Party Applications
Certain third-party applications, components or services may be made available by third parties for use or integration with the Portal at your option (“Third Party Applications”). If you elect to use or integrate a Third Party Application with the Portal, you acknowledge and agree that: (i) we and our licensors are not responsible or liable whatsoever for any Third Party Applications; and (ii) use of Third Party Applications is at your own discretion and risk. You acknowledge and agrees that the use of any Third Party Applications is governed by such Third Party Applications’ terms of use, license agreement, privacy policy, or other such terms and conditions and that any information or personal data you provide, whether knowingly or unknowingly, to such Third Party Application, will be subject to such Third Party Applications’ privacy policy, if such a policy exists. You are solely responsible for any fees, charges, losses or damages that results from using Third Party Applications without any apportionment or attribution to us and our licensors. Insofar as you use the Portal or Services with any Third Party Applications, you warrant that you have obtained and complied with the necessary license or terms and have obtained a right to do so from the relevant third parties.
Linked Websites; Disabling Code; Communications over the Internet
The Portal may provide links to third party websites. The content in any third party linked website is not under our control and does not form part of the Portal, and if you choose to access any such website, you do so entirely at your own risk. We cannot and do not guarantee or warrant that the Portal or the Content are compatible with your computer system or that the Portal, the Content, or any links therefrom, will be free of malware, viruses, or other code that manifests contaminating or destructive properties. You are responsible for implementing safeguards to protect the security and integrity of your computer system and you are responsible for the entire cost of any service, repairs or connections of and to your computer system that may be necessary as a result of your use of the Portal. We cannot and do not guarantee the security of data transmitted over the Internet or public networks including, without limitation, the confidentiality of any communications made by you through the Portal.
Governing Law
These Terms and Conditions will be governed by the laws of Ontario and the applicable federal laws of Canada, without giving effect to any choice of law rules that may require the application of the laws of another jurisdiction. All disputes arising out of or in connection with these Terms and Conditions shall be resolved exclusively in the jurisdiction and venue of the court in Toronto, Ontario.
Relationship of the Parties
Our relationship to you is that of an independent service provider. Nothing in these Terms and Conditions shall be construed to create a partnership, joint venture, or agency relationship between the Parties. Company works on a non-exclusive basis for you and is permitted to work with other organizations.
Public announcement; non-disparagement
We may make a public announcement relating to these Terms and Conditions and disclose your name as a client of the Services in a client list or in advertising or promotional materials. Neither Party, including its affiliates, directors, officers, or employees, will act or communicate in any way that may harm or diminish the other Party’s brand or name.
Third Party Beneficiaries
There are no third party beneficiaries under these Terms and Conditions other than our licensors, solely to the extent required to enable such licensors to directly enforce provisions herein relating to protection of their intellectual property.
Force Majeure Events
Neither Party will be liable for failures or delays caused by any event beyond its reasonable control, including acts of God.
Entire Agreement; Order of Priority.
These Terms and Conditions, and any master services agreement or similar agreement, all Order Forms, and all schedules, exhibits and attachments to and terms incorporated by reference into any of the foregoing, constitute the entire agreement between the Parties pertaining to the subject matter of these Terms and Conditions and supersede all prior agreements, understandings, and negotiations of the Parties. In the event of any conflict between an Order Form, service-specific terms appended to or incorporated by reference into an Order Form, and these Terms and Conditions, the order of precedence will be, in descending order: (i) the Order Form, only with respect to that Order Form; (ii) any applicable product terms; and then (iii) these Terms and Conditions.
In the event of conflict between these Terms and Conditions and any other agreement or understanding between you and us, these Terms and Conditions shall take precedence to the extent of any conflict.
Severability
Any provision of these Terms and Conditions that is found to be unenforceable will be replaced by a valid provision that comes closest to the intention of the unenforceable provision and these Terms and Conditions will continue in full force and effect with respect to all other provisions.
Non-Waiver
No failure or delay by either Party in exercising any right under these Terms and Conditions will constitute a waiver of that right. A waiver of any default, breach or non-compliance under these Terms and Conditions is not effective unless in writing and signed by the Party to be bound by the waiver. The waiver by a Party of any default, breach or non-compliance under these Terms and Conditions will not operate as a waiver of that Party’s rights under these Terms and Conditions in respect of any continuing or subsequent default, breach or non-compliance (whether of the same or any other nature).
Amendment
We reserve the right in our sole discretion to revise and update these Terms and Conditions from time to time. Any and all such modifications are effective immediately upon posting a revised version on our website or by notifying you in accordance with the Notices provision herein. You agree to periodically review our website and these Terms and Conditions in order to be aware of any such modifications. Your continued use of the Services after any modifications to these Terms and Conditions shall be your acceptance of these Terms and Conditions.
Notices
Any notices required or permitted to be given under these Terms and Conditions will be in writing, including email, and will be sufficient if delivered by hand or sent by registered mail or sent by email addressed to you or us at our respective addresses as set out in the Order Form or services agreement. Notice by hand delivery shall be effective on the date delivered, notice by registered mail shall be effective on the date received, and notice by email shall be effective on the date sent unless (i) the sender has received an error or similar message in respect thereof, in which case the notice is not effective; or (ii) the email was sent later than 5 p.m. Toronto time, in which case the email notice is effective on the immediately following business day.
Language
It is the express will of the Parties that these Terms and Conditions and all related documents have been drawn up in English.
