Schedule A: TERMS OF SERVICE
PLEASE READ THESE TERMS CAREFULLY AS THEY GOVERN YOUR USE OF THOUGHTFARMER CLOUD EDITION (“THOUGHTFARMER”). THESE TERMS EXEMPT OPENROAD COMMUNICATIONS LTD. (“OPENROAD”) AND OTHER PERSONS FROM LIABILITY AND ALSO LIMITS THEIR LIABILITY, AND CONTAINS OTHER IMPORTANT PROVISIONS THAT YOU SHOULD READ.
YOUR ACCEPTANCE OF THESE TERMS. By using ThoughtFarmer, you acknowledge that these Terms are an agreement between OpenRoad and you and all persons you represent (and for purposes of these Terms, “person” includes natural persons and any type of incorporated or unincorporated entity) regarding your access to and use of ThoughtFarmer. Each time you use ThoughtFarmer you signify your acceptance and agreement to the current version of these Terms. If you do not agree with each provision of these Terms, do not use ThoughtFarmer.
OpenRoad provides ThoughtFarmer to you (“Subscriber”) upon the terms and conditions set out below. By using ThoughtFarmer, Subscriber agrees to abide by the terms of this Terms of Service (“Terms of Service”).
1. Services and Payment. Consistent with Exhibit A, OpenRoad hereby agrees to provide ThoughtFarmer and Subscriber agrees to pay the Subscription Fee (the “Fee”). In addition, ThoughtFarmer will provide Technical Support Services (“Support”) as described in Exhibit A.
2. Modifications. OpenRoad may from time to time modify or enhance ThoughtFarmer. OpenRoad will endeavour to give Subscriber notice of this. Unless explicitly stated otherwise, any modifications or enhancements to ThoughtFarmer are subject to these Terms. OpenRoad reserves the right to interrupt access to ThoughtFarmer from time to time for regular maintenance, and will endeavour to give Subscriber notice of such scheduled maintenance.
3. License. OpenRoad grants Subscriber, and any wholly-owned subsidiary of Subscriber, a non-exclusive, non-transferable, limited license to access and use ThoughtFarmer.
4. Registered Users. Subscriber’s license to ThoughtFarmer entitles Subscriber to designate a limited number of Registered Users (“Users”) to access ThoughtFarmer. Each User shall be assigned a login identification, which will include a username and password. All Users of ThoughtFarmer are subject to all the terms and conditions of these Terms of Service. Subscriber is responsible for all access to ThoughtFarmer by Subscriber’s personnel or designated users, whether or not Subscriber has knowledge of or authorizes such use.
5. Subscriber’s Internal Policies. ThoughtFarmer is not responsible for compliance with Subscriber’s internal policies, regardless of whether it has notice of them.
6. Term. These Terms of Service remain in force until terminated in accordance with the Terms of Service. The following sections survive the termination of these Terms of Service: 7, 11, 12, 15.
7. Intellectual Property. The product name ThoughtFarmer and the ThoughtFarmer logo are trademarks of OpenRoad (the “ThoughtFarmer Marks”), whether or not registered. Subscriber may display or use the ThoughtFarmer Marks in conjunction with its use of the Service subject to any policy that OpenRoad may in the future create with respect to use of the ThoughtFarmer Marks.
Subscriber acknowledges and agrees that ThoughtFarmer, the interface to it (including without limitation data entry screens and reports generated by ThoughtFarmer) and all software used in connection with ThoughtFarmer contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Subscriber agrees not to use such property, including without limitation trade-marks, patents and other intellectual property of OpenRoad except as expressly authorized by these Terms of Service. Except as expressly authorized by OpenRoad, Subscriber agrees not to modify, rent, lease, loan, sell, distribute or create derivative works or businesses based on ThoughtFarmer, in whole or in part.
8. Prohibited Uses. Subscriber agrees not to access ThoughtFarmer by any means other than through the interface that is provided by OpenRoad for use in accessing ThoughtFarmer.
9. Privacy. If Subscriber or any User authorized by Subscriber accesses, receives or otherwise obtains any such information belonging to third parties, then Subscriber agrees to treat such information as strictly confidential and promptly notify OpenRoad, and not to download, copy, transmit or otherwise use any of such third party information, except as may be expressly authorized by OpenRoad.
10. Security. OpenRoad will maintain ThoughtFarmer at a reputable third party Internet service provider and hosting facility, where commercially reasonable security precautions are taken to prevent unauthorized access to ThoughtFarmer. Subscriber acknowledges that, notwithstanding such security precautions, use of, or connection to the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to ThoughtFarmer and Subscriber’s Data. ACCORDINGLY, OPENROAD CANNOT AND DOES NOT GUARANTEE THE PRIVACY, SECURITY, OR AUTHENTICITY OF ANY INFORMATION SO TRANSMITTED OR STORED IN ANY SYSTEM CONNECTED TO THE INTERNET.
11. Rights in Data. All property rights in the Subscriber’s Data (data that is provided by Subscriber), or by any party authorized by Subscriber to submit data to ThoughtFarmer, including without limitation copyrights, are and shall continue to be the exclusive property of Subscriber. Subscriber acknowledges and agrees that OpenRoad may disclose Subscriber’s Data only if required to do so by law or with prior written consent of the Subscriber. OpenRoad may provide statistical information, using Subscriber’s data, to third parties, but such information will not include personally identifying information. OpenRoad may access Subscriber’s Data to respond to service or technical problems with ThoughtFarmer. OpenRoad shall retain Subscriber’s Data for a period of thirty (30) days after expiration or termination of these Terms of Service. After thirty (30 days), OpenRoad may delete and destroy all Subscriber’s Data without notice or further liability to the Subscriber. OpenRoad reserves the right to establish (and notify the Subscriber of) a maximum amount of memory or other computer storage and a maximum amount of Subscriber’s Data that Subscriber may post, store, or transmit on or through ThoughtFarmer.
12. Responsibility/Indemnity. Subscriber and Users shall maintain the confidentiality of password and account login identification. Subscriber agrees to indemnify and hold harmless OpenRoad against any liability or claim of any person that relates to the use of ThoughtFarmer by Subscriber. Subscriber acknowledges that OpenRoad has no control over the source, quality, format, nature, ownership or legality of information submitted to ThoughtFarmer by the Subscriber and that the Subscriber is responsible for any claims or liabilities that may arise from the Subscriber’s actions in submitting information to ThoughtFarmer.
13. Warranty. OpenRoad warrants that: (I) It has the power, authority and capacity, and has received all necessary authorizations and approvals, to enter into these Terms of Service, (II) it owns or has all rights in and to the intellectual property rights in ThoughtFarmer necessary to grant the licenses granted in these Terms of Service, (III) the use of ThoughtFarmer in accordance with the terms of these Terms of Service does not, and will not infringe on the intellectual property rights of a third party, (IV) OpenRoad will take all reasonable steps to ensure ThoughtFarmer will be free of viruses, malicious codes and spy-ware throughout the term of these Terms of Service, (V) OpenRoad will undertake all reasonable efforts to correct any material errors in ThoughtFarmer.
14. Disclaimer and Limitation of Liability. EXCEPT AS PROVIDED IN THE WARRANTY ABOVE SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT:
A. SUBSCRIBER’S USE OF THOUGHTFARMER IS AT SUBSCRIBER’S SOLE RISK. THOUGHTFARMER IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
B. OPENROAD MAKES NO REPRESENTATION OR WARRANTY THAT (I) THOUGHTFARMER WILL MEET SUBSCRIBER’S REQUIREMENTS, (II) THOUGHTFARMER WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THOUGHTFARMER WILL BE ACCURATE OR RELIABLE, (IV) THE PERFORMANCE OF THE INTERNET WILL BE UNINTERRUPTED OR PERFORM AT SPECIFIED RATES, (V) SUBSCRIBER’S INTERNET SERVICE PROVIDER WILL PROVIDE UNINTERRUPTED SERVICE OR PERFORM AT SPECIFIED RATES, AND (VI) SUBSCRIBER’S EMAIL SERVICE WILL PERFORM AS WARRANTED.
C. SUBSCRIBER EXPRESSLY UNDERSTANDS AND AGREES THAT OPENROAD SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, SUBSCRIBER’S DATA, BODILY INJURY OR PROPERTY DAMAGE, FAILURE TO REALIZE EXPECTED SAVINGS, OR OTHER INTANGIBLE LOSSES (EVEN IF OPENROAD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THOUGHTFARMER; (II) INVALID DESTINATIONS, TRANSMISSION ERRORS, OR UNAUTHORIZED ACCESS TO OR ALTERATION OF SUBSCRIBER’S TRANSMISSIONS OR SUBSCRIBER’S DATA.
D. NO CLAIM, REGARDLESS OF FORM, MAY BE MADE OR ACTION BROUGHT BY EITHER PARTY MORE THAN ONE YEAR AFTER THE BASIS FOR THE CLAIM BECOMES KNOWN TO THE PARTY ASSERTING IT.
E. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, OPENROAD’S LIABILITY TO SUBSCRIBER PURSUANT TO THESE TERMS OF SERVICE, INCLUDING LEGAL FEES AND AWARDABLE COSTS, SHALL NEVER EXCEED THE AMOUNT PAID BY SUBSCRIBER TO OPENROAD FOR THE USE OF THOUGHTFARMER IN THE PREVIOUS TWELVE MONTHS.
15. Termination for Breach: Upon the occurrence of any of the following events: (i) the other party materially breaches or defaults in any of the material terms or conditions of these Terms of Service, a failure to pay being deemed to be a material breach, (ii) the other party makes any assignment for the benefit of creditors, is insolvent or unable to pay its debts as they mature in the ordinary course of business, or (iii) any proceedings are instituted by or against the other party in bankruptcy or under any insolvency laws or for reorganization, receivership or dissolution, then the non-defaulting party may give the other party written notice of such default and an opportunity to cure the default within thirty (30) days after receipt of such notice (five (5) days’ notice for non-payment), failing which the non-defaulting party may cancel these Terms of Service without notice. OpenRoad, in its sole discretion, may suspend Subscriber’s access to ThoughtFarmer during the cure period for non-payment.
16. Effect of Termination. Notwithstanding the foregoing and provided that Subscriber is not in default of these Terms of Service, upon termination and for sixty (60) days after that, OpenRoad shall provide reasonable assistance to Subscriber in the migration of Subscriber’s Data. Subscriber agrees to pay in advance for all such services rendered. Subscriber shall pay OpenRoad all other accrued and unpaid fees concurrently with giving notice of termination.
17. Force Majeure. Neither party is liable for any delay, interruption or failure in the performance of its obligations if caused by acts of God, war (declared or undeclared), fire, flood, storm, slide, earthquake, power failure, inability to obtain equipment, supplies or other facilities not caused by a failure to pay, labour disputes, or other similar event beyond the control of the party affected which may prevent or delay such performance. If any such act or event occurs or is likely to occur, the party affected shall promptly notify the other, giving particulars of the event. The party so affected shall use reasonable efforts to eliminate or remedy the event.
18. Notices. All notices required to be given to OpenRoad shall be given to OpenRoad at its address or via e-mail (see www.thoughtfarmer.com/contact). Any notice required to be given by OpenRoad may be given by e-mail to the address of Subscriber’s Technical and Administrative Contact which was provided at registration, subject to having been changed from time to time.
19. Sole Agreement. These Terms of Service together with the ThoughtFarmer Proposal (Exhibit A) constitutes the sole agreement between the parties. Without limiting the generality of the foregoing, nothing contained on the ThoughtFarmer website www.thoughtfarmer.com forms part of the contract between Subscriber and OpenRoad as evidenced by these Terms.
20. Dispute Resolution. The parties agree that, both during and after the performance of their responsibilities under the Terms of Service, each of them shall (i) make bona fide efforts to resolve any disputes arising between them by amicable negotiations, and (ii) provide frank, candid, and timely disclosure of all relevant facts, information and documents to facilitate those negotiations.
Should any dispute arise between the parties that cannot be resolved by negotiation, whether during or after the term of the Terms of Service, concerning these Terms of Service or its interpretation or the respective rights, duties or liabilities of the parties, either party shall immediately give notice to the other party of such dispute. The other party shall reply to such notice no later than fourteen (14) days after receipt of it. If the dispute is not resolved within thirty (30) days, settlement of the dispute shall be referred to arbitration.
The parties shall appoint a single arbitrator, to be agreed on by the parties, pursuant to the Commercial Arbitration Act of British Columbia, or any statutory modification or re-enactment thereof for the time being in force in the Province (the “Act”). If the parties fail to agree on a single arbitrator then the dispute will be referred to the British Columbia International Arbitration Centre, who will select an arbitrator, which selection will be binding upon all parties. The arbitrator so chosen will select the time and place of the hearing or hearings and will conduct the arbitration pursuant to the rules in the Act. The arbitrator must be knowledgeable in information technology industry practices and contracts and be admitted to practice law in at least one province of Canada. The arbitrator may not award any punitive, exemplary or other non-compensatory damages, or any penalties, or to award either party any of its costs or legal fees relating to the dispute. The arbitration will be conducted in English. The arbitrator will have full authority to rule on any question of law in the same manner as any Judge in any Court of the Province of British Columbia and the ruling of the arbitrator on any question of law will be final and binding upon the parties. The arbitration will be held in British Columbia.
The failure of any party to abide by the decision of the arbitrator will be considered an act of default under these Terms. Judgment on any award rendered by the Arbitrator may be entered in any Court of competent jurisdiction in British Columbia or elsewhere. The laws of the British Columbia govern these Terms of Service and all disputes arising out of it shall be submitted to a court of competent jurisdiction in British Columbia subject to the prior agreement to arbitrate.
21. Assignment. These Terms of Service may not be assigned by Subscriber without OpenRoad’s consent, such consent not to be unreasonably withheld.
22. General Provisions. No waiver of any of the provisions of these Terms of Service shall be deemed to constitute a waiver of any other provision nor shall such a waiver constitute a continuing waiver unless otherwise expressly provided in writing duly executed by the party to be bound. These Terms of Service are binding upon the successors to and permitted assigns of the parties.
23. Software Support.
A. Hours of Coverage Support is available from 8:00 A.M. to 4:00 P.M. Monday through Friday Pacific local time (UTC-8) (excluding statutory holidays in British Columbia, Canada).
Twenty-four hour, seven days a week limited support is available online through the ThoughtFarmer Website at https://www.thoughtfarmer.com/support.
If Subscriber has purchased Emergency 24×7 Telephone Support Line, twenty-four hour, seven days a week support is available via the Emergency 24×7 Telephone Support Line: 1-888-694-3999 or +1 604 566 8300 (extension 3).
B. Subscriber Incidents Reporting All incidents are to be reported via: http://helpdesk.thoughtfarmer.com Emergencies during regular office hours can be reported by phone: 1-888-694-3999 or ++1 604 566 8300. All phone calls must be followed up with a ticket filed on the issue tracking system at http://helpdesk.thoughtfarmer.com.
C. Incident/Request for Service Priority All support and maintenance incidents/ requests for service will be prioritized on the following basis:
|Emergency (A)||4 business hours||7 days|
|Critical (B)||2 business days||14 days|
|Non-Critical (C)||As time permits, or inclusion in the next scheduled update to ThoughtFarmer. OpenRoad will use reasonable efforts to inform Subscriber within 4 days of its intentions.||At OpenRoad’s sole discretion|
D. Priority Definition Emergency (A): Catastrophic product or module failures that do not have a viable detour or workaround available. Catastrophic failure shall be deemed to include failures that cause an interruption of service or seriously impair the functionality of ThoughtFarmer (e.g. loss of use of major features, file system corruption, data loss, security issue, system outage).
Critical (B): Problems that have been substantiated as a serious inconvenience to Subscriber due to issues or features of the product preventing normal operations. This includes any priority A failures for which a viable detour or workaround is available. Convenience and performance are materially impacted.
Non-Critical (C): All other non-critical problems which Subscriber can easily avoid or detour for which there is no urgency for a resolution. Slight inconvenience.
OpenRoad staff acting reasonably will determine an issue’s priority classification. A resolution may not be available at the time OpenRoad responds to Subscriber, in which case OpenRoad will attempt to estimate the “time to resolution”.
Response consists of providing, as appropriate, one of the following to Subscriber: an existing correction; a new correction; a viable detour or work around; a request for more information to complete analysis of the problem, or a plan on how the problem will be corrected.
Closure consists of providing a final correction or work around of the problem including modifications of the Software and, to the extent reasonably possible, revised or new documentation as necessary, it being understood that documentation may be completed after the applicable closure date.
For non-critical requests, OpenRoad may, in its sole discretion, choose to not resolve the request.
24. Service Level Agreement. OpenRoad guarantees that ThoughtFarmer will be available 100% of the time in a given month, except for any outages due to scheduled maintenance, software customizations made by Subscriber, or outages beyond the control of OpenRoad.
When an outage causes a loss of service exceeding 30 continuous minutes in a calendar month, OpenRoad will provide a Service Credit consisting of 5% of the monthly recurring fee for each 30-minute block, up to a maximum of 100% of the monthly recurring fee for approved credit claims.
All Service Credit claims must be submitted via email to email@example.com. You will be assigned a ticket number and the claim will be reviewed within 10 business days. Claims for Service Credits must be received within fifteen (15) days following the end of the month in which the SLA violation occurred. Upon application for a Service Credit, OpenRoad will notify Subscriber following investigation of the application. If rejected, the notification will specify the basis for rejection. If approved, OpenRoad will credit your account by the appropriate amount.
25. Modification of Terms of Service. OPENROAD MAY, IN ITS SOLE DISCRETION, CHANGE THESE TERMS OF SERVICE FROM TIME TO TIME AS IT RELATES TO FUTURE USE OF THOUGHTFARMER BY INCLUDING A REVISED AGREEMENT WITH YOUR INVOICE OR RECEIPT. YOU MAY NOT CHANGE THESE TERMS OF SERVICE IN ANY MANNER WITHOUT THE CONSENT IN WRITING OF OPENROAD.