End User License Agreement
Phone (604) 408.0085
Fax (778) 331.0402
www.fatiguescience.com
This End User Agreement (“Agreement”) applies to the use of the Platform and will be binding on End User and Sleep Performance Inc. dba Fatigue Science of 200 – 110 W Hastings Street, Vancouver, B.C., Canada, V6B 1G8 (“Fatigue Science”) upon the earlier of (the “Effective Date”): (i) the date of the last signature on the appliable Subscription Agreement or (ii) when Fatigue Science makes the Platform available for End User’s use under the Subscription Agreement. By using the Platform, End User automatically agrees to the Agreement.
BACKGROUND
A) Fatigue Science is the developer of its Readi platform (the “Platform”), a proprietary software platform for use in connection with an organization’s overall fatigue management practices for the organization’s personnel.
B) Pursuant to a separate agreement between End User and an authorized “Managed Services Provider” (“Subscription Agreement”), the End User will have access to the Platform.
C) This Agreement will govern certain matters between Fatigue Science and End User between them related to the foregoing.
AGREEMENT
IN CONSIDERATION OF the premises and mutual covenants contained in this Agreement, End User’s receipt of outputs and results of the Platform, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:
1. DEFINITIONS
1.1 “Authorized User” means an individual authorized by End User to access and use the Platform on behalf of and for the benefit of the End User, and who has been supplied with a user identification and password.
1.2 “Documentation” means the user and technical documentation for the Platform made available on or through the Fatigue Science website.
1.3 “Subscription Term” means the term of End User’s subscription to the Platform under the Subscription Agreement
2. PLATFORM
2.1 Platform. Subject to the terms and conditions of this Agreement and the Subscription Agreement, Fatigue Science grants End User and its Authorized Users a non-exclusive, non-transferable right and license to access and use the Platform during the Subscription Term for End User’s internal business purposes for the number of licenses set out in the Subscription Agreement. Fatigue Science will provide the software, applications, hardware and infrastructure necessary for End User to access and use the Platform in accordance with the Subscription Agreement and the Documentation. End User is responsible for providing and maintaining its own computer & data systems, network connectivity, electric power, and the hardware and software infrastructure necessary to access the Platform through the Internet. Fatigue Science will not be liable for any failures arising from or relating to End User’s systems and infrastructure.
2.2 Platform Service Levels. Fatigue Science will use commercially reasonable efforts to make the Platform available 24 hours per day, 7 days per week, except for: (a) scheduled downtime, which will occur no more than every other week and for no longer than two (2) hours at a time, unless End User is otherwise notified; and (b) any unavailability caused by circumstances beyond Fatigue Science’s reasonable control, including, but not limited to, natural disaster (fire, flood, earthquake), civil unrest, an act of government, strike, Internet service provider failure or delay, or denial of service attack.
2.3 Technical Support. During the Subscription Term, Managed Service Provider will provide, and the End User will have access to, technical support via telephone, email and the Managed Service Provider’s website to assist End User with its use of the Platform. Telephone and email assistance will be available during the times specified in the Subscription Agreement. Technical support does not include consulting services or any instruction for custom enhancements or add-ons which are not part of the standard Platform release.
2.4 Services. Fatigue Science will provide any training or other services set out in the Subscription Agreement. Such services will be provided in a professional and workmanlike manner by personnel with sufficient skill, knowledge, and experience to perform such services. Fatigue Science will adhere to End User’s applicable safety and security guidelines, of which Fatigue Science has been informed, while performing any services on the End User’s premises. End User’s sole remedy for any breach of this provision will be re-performance of the applicable services at no additional cost.
3. USE OF THE PLATFORM
3.1 Access and Use. End User will permit only Authorized Users to access and use the Platform. End User will keep all Authorized User ID’s and passwords confidential and will not share them with anyone outside its organization. End User will not impersonate another user or provide false identity information to gain access to or use of the Platform.
3.2 Platform Use Guidelines. End User will use the Platform solely as contemplated by this Agreement and will not: (a) liccense, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Platform available to any third party; (b) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (c) knowingly send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material violative of third party privacy rights; (d) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (e) interfere with or disrupt the integrity or performance of the Platform or the data contained therein; or (f) attempt to gain unauthorized access to the Platform or related systems or networks. Fatigue Science reserves the right to suspend End User’s use of the Platform or take other appropriate remedial action to address any violation or suspected violation of this Section 3.2.
3.3 Authorized Users. End User is responsible for all activities that occur under its Authorized User accounts, and will use commercially reasonable efforts to ensure that Authorized Users, when accessing their accounts or the Platform, comply with all of the restrictions set forth herein. End User is solely responsible for (a) compliance with laws in End User’s use of the Platform, including those related to privacy and the transmission or use of personal data; and (b) any claims, issues or disputes arising out of any acts or omissions of its Authorized Users, or out of any individual’s participation or involvement in End User’s use of the Platform.
3.4 Acknowledgement and Indemnity. End User acknowledges and agrees that: (a) the Platform is a tracking and reporting tool only for use in connection with End User’s overall fatigue management practices for its personnel; (b) the outputs and results from the Platform, and any of Fatigue Science’s observations, interpretations or recommendations about such output, may not be accurate for any given individual or situation; and (c) no technology, including the Platform, can accurately predict fatigue or fatigue induced errors in all cases or for all individuals. End User is solely responsible for its collection, use, interpretation and application of the information derived from its use of the Platform. End User will indemnify, defend and hold Fatigue Science harmless from any claims, causes of action, losses, liabilities or damages (including reasonable attorney’s fees) brought against or incurred by Fatigue Science arising out of or related to End User’s collection, use, interpretation and application of information (including End User Personal Data) derived from or used in connection with the Platform. This indemnity will not apply to the extent any such claim is caused by Fatigue Science’s breach of this Agreement.
4. DATA PROTECTION
4.1 End User Data. “End User Data” means any proprietary data or materials provided by the End User to Fatigue Science in conjunction with the End User’s use of the Platform, including data collected from or regarding any individual and any personally identifiable information about an individual (“End User Personal Data”).
4.2 Protection of End User Data. Fatigue Science will maintain commercially reasonable administrative, physical and technical safeguards (including, but not limited to, with respect to access controls, monitoring and logging, vulnerability and breach detection, incident response and encryption) to prevent the unauthorized access, use or disclosure of End User Data stored in the Platform. Fatigue Science will not access End User Data, except as required (a) to provision the Platform for the End User, (b) to prevent or address service or technical problems, (c) as otherwise expressly permitted by this Agreement, or (d) as expressly requested or authorized by the End User. End User agrees that Fatigue Science may generate analyses and anonymized, aggregated or non-personally identifiable data (“Analyses and Aggregate Data”) derived from End User Data and its authorized users’ use of the Platform. Fatigue Science may freely use, publish and otherwise disclose Analyses and Aggregate Data, including for research, development, Platform improvement, and providing benchmarking against norms or groups, statistics and analyses to users of the Platform and others; in all cases provided that any such Analyses and Aggregate Data do not reveal the identity of its Authorized Users, or any of its their respective personnel or contain any End User Data. Analyses and Aggregate Data will be the sole property of Fatigue Science. It is further clarified that Fatigue Science shall not make publication containing End User Data without express permission in writing from the End User, in any journals/slides/podcasts or blogs etc.
4.3 Security Incident. Fatigue Science will notify Managed Services Provider and End User if Fatigue Science determines that the security of the Platform has been breached and this results in End User Data being accessed by or disclosed to an individual or entity who is not authorized to access or receive such information. Fatigue Science will report to Managed Services Provider and End User on the corrective action being taken in response to such security breach and will reasonably cooperate with Managed Services Provider and End User in mitigating the effects of any lost or compromised End User Data.
4.4 End User Obligations. End User will use commercially reasonable security precautions in connection with its use of the outputs and results of the Platform and its collection, use and submission of End User Data to the Platform. End User will not upload, use or process End User Data in the Platform unless End User owns and/or has lawfully obtained such End User Data and complies with all laws applicable to such End User Data. End User will notify Fatigue Science immediately if it becomes aware of any known or suspected breach of security.
4.5 Data Retention Policy. The End User is responsible for removing End User Data from the Platform prior to expiration or termination of its subscription. End User Data which is not removed may be retained in the Platform for up to three (3) years after expiration or termination. Upon written request by Managed Services Provider or End User, Fatigue Science will delete End User Data from the Platform within thirty (30) days of such request and will confirm such deletion to Managed Services Provider and End User; provided however that End User Data may reside in Fatigue Science backups for up to sixty (60) days after deletion before being fully purged.
5. CONFIDENTIALITY
5.1 Confidential Information. The term “Confidential Information” includes all information, software and data furnished by either party (the “Disclosing Party”) to the other party (the “Receiving Party”), whether in oral, written or machine-readable form, which is proprietary in nature and is not readily available to the public. Confidential Information includes, without limitation, the Platform and all information regarding performance of the Platform (including availability, uptime and performance benchmarks), all End User Data and any financial information, product plans, product roadmaps, business methods, trade secrets or other non-public information regarding the Disclosing Party’s business, customers, employees or personnel.
5.2 Non Confidential Information. Notwithstanding the foregoing, Confidential Information will not include information that: (i) has entered the public domain through no action or failure to act of the Receiving Party; (ii) prior to disclosure hereunder was already lawfully in Receiving Party’s possession without any obligation of confidentiality; (iii) subsequent to disclosure hereunder is obtained by the Receiving Party on a non-confidential basis from a third party who has the right to disclose such information to the Receiving Party; or (iv) is independently developed by the Receiving Party without reference to the Disclosing Party’s Confidential Information; provided however, that End User Personal Data will always be deemed and considered Confidential Information.
5.3 Obligation of Non-Disclosure. The Receiving Party will safeguard the Confidential Information of the Disclosing Party with at least the same degree of care that it utilizes to safeguard its own Confidential Information, but in any event not less than a reasonable degree of care. The Receiving Party agrees (a) not to disclose the Confidential Information of the Disclosing Party to any third parties (except for the Managed Services Provider and the Disclosing Party’s subcontractors or professional advisors who are bound by an obligation of confidentiality no less restrictive than this provision), and (b) to use the Confidential Information solely for the purpose of performing its obligations and exercising its rights under this Agreement. The Receiving Party will not remove or alter any copyright, trademark, service mark or other proprietary rights notice attached to or included in any Confidential Information furnished by Disclosing Party.
5.4 Compelled Disclosure. If the Receiving Party is compelled by law, regulation or a court of competent jurisdiction, or securities law or stock exchange disclosure requirements, to disclose any of the Disclosing Party’s Confidential Information, to the extent permitted by law, the Receiving Party will promptly notify the Disclosing Party so that it may seek a protective order or other appropriate remedy. The Receiving Party agrees to cooperate at the Disclosing Party’s expense in seeking such order or other remedy. If disclosure is ultimately required, the Receiving Party will furnish only that portion of the Confidential Information that is legally required, exercise reasonable efforts to obtain assurance that it will receive confidential treatment, and continue to treat such Confidential Information in accordance with its obligations under this Section.
6. PROPRIETARY RIGHTS
6.1 Ownership. As between Managed Service Provider, End User and Fatigue Science, Fatigue Science owns all right, title, and interest in and to the Platform (including user and technical documentation for the Platform and the hardware and software used to provide the Platform), and all intellectual property rights related thereto. Except for the limited rights expressly granted to End User in this Agreement, Fatigue Science reserves all right, title and interest in and to the Platform and all related intellectual property rights.
6.2 End User Data. As between End User and Fatigue Science, End User owns all right, title, and interest in and to the End User Data, and all intellectual property or other rights related thereto. End User hereby grants Fatigue Science a non-exclusive, limited license (with the right to sublicense to its subcontractors and licensees, as applicable) to use End User Data solely in accordance with the terms of this Agreement.
6.3 Feedback. To the extent End User provides any suggestions, ideas, enhancement requests, feedback, recommendations or other information relating to the Platform (“Feedback”), End User hereby grants Fatigue Science a non-exclusive, royalty free, worldwide, perpetual, irrevocable license to freely use, disclose, and otherwise exploit such Feedback, including by incorporating it into future versions of the Platform.
7. DISCLAIMER
7.1. Disclaimer. FATIGUE SCIENCE MAKES NO WARRANTIES, REPRESENTATIONS, CONDITIONS, OR ENDORSEMENTS, OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE PLATFORM, THE OUTPUTS AND RESULTS OF THE PLATFORM, ANY RELATED SOFTWARE, HARDWARE OR SERVICES, OR THIS AGREEMENT, AND EXPRESSLY DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF TITLE, NONINFRINGEMENT (BUT NOT IN DEROGATION OF FATIGUE SCIENCE’S OBLIGATIONS UNDER SECTION 6 BELOW), MERCHANTABLE QUALITY, MERCHANTABILITY, DURABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. End User acknowledges and agrees that neither Fatigue Science nor its suppliers operates or controls the Internet and that: (i) viruses, worms, Trojan horses, or other undesirable data or software exist; and (ii) unauthorized users (e.g., hackers) may attempt to obtain access to End User’s data, account or networks. Fatigue Science uses reasonable efforts consistent with industry standards, and as set out in this Agreement, to protect the Platform from such unauthorized use, but Fatigue Science is not responsible for issues related to acts or omissions of third parties (excluding any subcontractors, employees or any agents working on Fatigue Science’s behalf).
8. INTELLECTUAL PROPERTY INDEMNITY
8.1 Indemnity. Fatigue Science will defend any claim or action brought against End User by a third party to the extent it is based upon a claim that the Platform, as provided by Fatigue Science under this Agreement and used within the scope of this Agreement, infringes any third party copyright, trade secret, trademark or U.S. patent, and will pay any costs, damages and reasonable attorneys’ fees attributable to such claim that are finally awarded against End User or agreed upon by Fatigue Science in settlement. The above defense and indemnity obligations do not apply to the extent the claim arises from End User’s breach of this Agreement.
8.2 Indemnity Conditions. Fatigue Science’s obligations under Section 1 are subject to End User complying with the following conditions: (a) End User will notify Fatigue Science promptly (within at least thirty (30) days) after being made aware of the claim or action; (b) End User will provide Fatigue Science with sufficient information to show the extent to which the Platform is the cause of the infringement; (c) End User will provide reasonable assistance and information to Fatigue Science, at Fatigue Science’s expense, for the defense of the claim; and (d) End User will allow Fatigue Science to control the defense of the claim. End User may, at its own cost, engage counsel of its choice.
8.3 Injunction. If End User's use of the Platform as described herein is, or in Fatigue Science's opinion is likely to be, enjoined due to the type of infringement specified in Section 1 above, or if a claim is brought against End User due to the type of infringement specified in Section 8.1 above, then Fatigue Science may, at its sole option and expense: (a) procure for the right to continue using the Platform including its outputs and results; (b) modify the Platform including its outputs and results so that it is non-infringing and substantially equivalent or better in function; or (c) if options (a) and (b) above cannot be accomplished despite Fatigue Science's commercially reasonable efforts, then Fatigue Science may cause the Managed Service Provider to terminate the Subscription Agreement to the Platform and terminate the End User’s access to the outputs and results of the Platform.
8.4 Sole Remedy. THE FOREGOING PROVISIONS OF THIS SECTION 8 SET FORTH FATIGUE SCIENCE’S SOLE AND EXCLUSIVE OBLIGATIONS, AND END USER’S SOLE AND EXCLUSIVE REMEDIES, WITH RESPECT TO INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS.
9. LIMITATION OF LIABILITY
9.1 EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS UNDER THIS AGREEMENT, OR BREACH OF SECTION 5 (CONFIDENTIALITY): (A) NEITHER PARTY WILL BE LIABLE TO THE OTHER OR TO ANY OTHER THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR PUNITIVE DAMAGES OR LOSSES (IN CONTRACT OR TORT) IN CONNECTION WITH THE PLATFORM OR THIS AGREEMENT, OR DAMAGES FOR LOST PROFITS OR LOST SAVINGS, EVEN IF SUCH LOSS OR DAMAGES IS CAUSED BY EITHER PARTY’S NEGLIGENCE AND EVEN IF EITHER PARTY HAS KNOWLEDGE OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE; AND (B) EACH PARTY’S AGGREGATE CUMULATIVE LIABILITY FOR ANY CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT WILL BE LIMITED TO THE AMOUNT OF PLATFORM FEES PAID TO MANAGED SERVICES PROVIDER BY END USER DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. The limitations and exclusions in this Section 1 will not apply to any liability which cannot be limited or excluded under applicable law, including, but not limited to, the tort of deceit, or death or personal injury caused by a party’s negligence.
10. INSURANCE
10.1 Coverage. Fatigue Science will, at its own expense and without limiting or increasing its obligations for liability under this Agreement, obtain and maintain the following insurance coverage in full force and effect during the Subscription Term for the Platform: (a) commercial general liability insurance with limits no less than two million dollars ($2,000,000) per occurrence and two million dollars ($2,000,000) as an annual aggregate against liability for bodily injury and property damage; (b) employer’s liability insurance with limits no less than two million dollars ($2,000,000); (c) professional liability insurance with limits no less than two million dollars ($2,000,000) per claim and two million dollars ($2,000,000) as an annual aggregate; (d) non-owned automobile liability insurance with limits no less than one million dollars ($1,000,000); (e) cyber and privacy liability insurance with limits no less than two million dollars ($2,000,000); and (f) workers compensation insurance as required by applicable law.
10.2 Evidence. Fatigue Science will have the above insurance in full force and effect as of the Effective Date and, if requested by End User, will provide End User with a certificate or memorandum of insurance confirming the insurance coverage.
11. MARKETING
11.1 Publicity. Fatigue Science may identify End User in Fatigue Science customer lists and on the Fatigue Science website using End User’s name and logo. Fatigue Science will obtain End User’s prior written consent for any other use of End User’s name and logo. Neither party will take any action or publish any information, act or thing that may be detrimental to the business reputation of the other party.
11.2 Referral. Fatigue Science may from time to time refer potential new customers to End User as a reference for the Platform and Fatigue Science, and End User agrees to respond reasonably to all such reference contacts.
12. GENERAL
12.1 Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable in that Province without regard to conflicts of law principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply in any way to this Agreement or to the transactions contemplated by this Agreement. Subject to Section 2, the parties agree to submit to the exclusive jurisdiction of the courts of Vancouver, British Columbia, Canada and waive all objections as to the venue thereof.
12.2 Disputes. Subject to and without restricting the rights of a party to injunctive relief and any other interim measures of relief, the parties will attempt to settle any claim or controversy relating to this Agreement through consultation and negotiation in good faith and a spirit of mutual cooperation. By mutual agreement, the parties may agree to use some form of non-binding alternative dispute resolution, such as mediation, neutral fact-finding or a mini-trial. The use of any alternative dispute resolution procedure will not be construed as a waiver or estoppel to affect adversely the rights of either party. Any dispute which the parties cannot resolve between themselves within one (1) month after the claim or controversy first arose will be referred to, finally settled and determined by the courts of Vancouver, British Columbia, Canada.
12.3 Complete Agreement. This Agreement is the complete and exclusive statement of the agreement between the parties with respect to the subject matter contained herein and supersedes and merges all prior representations, proposals, understandings and all other agreements, oral or written, express or implied, between the parties relating to the matters contained herein. This Agreement may not be modified or altered except by written instrument duly executed by both parties. The terms of any End User purchase order or any other End User ordering document will not be binding on Fatigue Science and will not be construed to modify this Agreement.
12.4 Injunctive Relief. The parties acknowledge and agree that, notwithstanding any other provisions of this Agreement, a breach of the provisions of this Agreement by one party may cause the other party to suffer irreparable damage for which recovery of money damages would be an inadequate remedy, and that the non-breaching party may, therefore, be entitled to obtain timely injunctive relief to protect its rights under this Agreement in addition to any and all remedies available at law.
12.5 Force Majeure. Neither party shall be held responsible for any delay or failure in performance under this Agreement to the extent such delay or failure is caused by fire, flood, strike, civil, governmental or military authority, act of God, inability to obtain delivery of parts, supplies, labour conditions, earthquakes, acts of terrorism or war, Internet or telecommunications failure or any other cause beyond its control and without the fault or negligence of the delayed or nonperforming party.
12.6 Notices. Any notice that either party is required or permitted to give to the other party under this Agreement will be in writing and be delivered to the address shown below. Either party may, from time to time, change their address for notice by providing written notice of the change to the other party. The delivery of notice will be by personal delivery, courier or mail. Delivery of notice will be deemed effective upon receipt.
Fatigue Science:
Sleep Performance Inc.
dba Fatigue Science
200 – 110W Hastings Street
Vancouver, British Columbia
Canada, V6B 1G8
Attention: Legal Department
End User:
Notices to End User will be delivered to the address set out on the applicable Software Agreement.
12.7 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the other party’s prior written consent (not to be unreasonably withheld); provided, however, either party may assign this Agreement in its entirety without the other party’s consent to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets. Subject to the foregoing, this Agreement will bind and inure to the benefit of the parties, their respective successors and permitted assigns.
12.8 Waiver and Severability. The waiver of, or failure of a party to exercise, any right provided for in this Agreement will not be deemed a waiver of any further right hereunder. If any provision of this Agreement is held to be invalid, illegal or unenforceable under any applicable statute or rule of law, such provision will be limited or severed the minimum extent necessary so that the validity, legality and enforceability of the remaining provisions will in no way be affected or impaired.
12.9 No Agency. The parties acknowledge that each is an independent contractor and nothing herein constitutes a joint venture or partnership and neither party has the right to bind or act for the other as agent or in any other capacity.
12.10 Managed Services Provider. Any separate agreement between End User and the Managed Services Provider in relation to the Managed Services Provider’s products and services or otherwise will not change any term or condition of this Agreement and in the event of any inconsistency between them and this Agreement, then this Agreement will prevail as between Fatigue Science and End User. Fatigue Science accepts no legal responsibility for any matters pertaining to any separate agreement between End User and the Managed Services Provider, and Fatigue Science is not responsible for the acts or omissions of the Managed Services Provider. End User acknowledges that the Managed Services Provider will be entitled to terminate End User’s ongoing access to the outputs and results of the Platform as set in such separate agreement.
12.11 Execution. This Agreement may be executed in as many counterparts as may be necessary or by facsimile or by other electronic means producing a printed copy, each of which when so executed will be deemed to be an original, and such counterparts, facsimiles or other electronic copies will together constitute one and the same agreement.
12.12 No Third Party Beneficiaries. Unless otherwise expressly stated in this Agreement, no person, other than a party to this Agreement will be entitled to enforce any term of this Agreement.