ACTO Terms and Conditions
- Terms and Conditions. These Terms and Conditions (“ACTO Terms and Conditions”) govern the Customer's subscription to certain of ACTO’s platform and products and engagement of ACTO to perform certain related services, each as more particularly described in the relevant Order Form and Statement of Work (“SOW”) and attached hereto and incorporated by reference herein (the “Platform,” “Product,” and “Services,” respectively).
- By using or visiting the ACTO Platform, Products, and Services, the Customer accepts and agrees to be bound by these Terms of Service and all Order Forms and SOWs which are incorporated herein by reference (collectively referred to as the “Agreement”). This Agreement constitutes a binding agreement between the customer (“Customer”) and ACTO Technologies Inc. operating as ACTO (“ACTO”). This Agreement represents the parties’ entire understanding regarding the ACTO Platform, Products, and Services and shall govern over any prior oral or written agreement or discussions or different or additional terms or conditions of any purchase order, invoice or other ordering document. No other terms or conditions of any purchase order, invoice or other ordering document shall apply to the ACTO Platform, Products and Services, unless agreed to in writing by both parties.
- Fees and Expenses. The Customer agrees to pay ACTO the fees and applicable expenses (as specifically detailed in the Order Form and SOW), as well as any sales, value-add, usage, or other government-mandated taxes (but excluding any taxes based on revenue or income) based upon the fees. Fees will commence on the Effective Date and shall continue for the Term or any subsequent Renewal Term, per the fees and payment schedule set out in the relevant Order Form and SOW. ACTO will invoice all fees and expenses per schedule as set out in the relevant Order Form and SOW.
The Customer shall reimburse ACTO for any reasonable and documented expenses incurred in connection with the performance of the work under this Agreement, provided that the Customer has approved such expenses in writing.
- Payment terms. Payment Terms Net 30 days of the invoice date (the “Due Date”). Any amount due but not paid by the Customer by the Due Date will bear interest at the rate of 1% per month from the Due Date until all outstanding amounts are paid (the “Interest Rate Provision”).
- This Agreement shall continue until three (3) years from the Effective Date or completion of an applicable Order Form and/or SOW, whichever is longer. The Agreement Term will automatically renew at the end of the Term for an additional twelve (12) months term and shall continue to renew for successive twelve (12) months thereafter (each a “Renewal Term”) unless the Customer provides us with written notice of the Customer’s intent not to renew at least sixty (60) days before the expiration of the Term or the Renewal Term. The Customer must cancel the Services at least sixty (60) days before the expiration of the Term or Renewal Term to avoid being billed for a (further) Renewal Term. Payment for Services for the Renewal Term is due on the first day of the Renewal Term and will automatically be charged to the account that the Customer used for the original subscription. Upon renewal and subject to the Customer’s prior approval, the renewal price for any Services for a Renewal Term may be increased by ACTO. ACTO shall notify the Customer at least ninety (90) days before renewal for reviewing any price increase.
- ACTO may suspend the provision of the Platform, Products, and Services in the event that the Customer fails to make any payment when due hereunder, ceases to carry on its business in the normal course, is misusing the product, or is in breach of any material obligation under this Agreement. Suspension shall have no effect on the payment obligations of the Customer during the Term or Renewal Term.
- No refunds will be provided for early termination, and the Customer will pay the fees and expenses in full for the Platform and Products provided by ACTO up to and including the last day of the month in which the termination occurs. All Service based fees will be payable on a pro-rata basis for work performed until and including the date of termination. After a mutually agreed period, the Platform will be provided “as is”, with support provided by ACTO as set out in an applicable Order Form and SOW, and no refunds will be provided for the Customer’s failure to use the Platform. If the Parties are in dispute that material non-performance has occurred, the Parties will revert to the dispute resolution provisions of this Agreement to resolve such dispute.
- Termination for Cause. ACTO shall have the right to terminate this Agreement at any time upon providing a thirty (30) days written notice of the termination to the Customer if the Customer : (a) fails to pay any undisputed invoice despite a reminder notice of fifteen (15) days; and/or (b) breaches the Software License Terms (Schedule-A) and/or any provision of this Agreement and fails to cure it within a reasonable period of time (not exceeding thirty (30) business days) after receipt of notification of such breach or default. (The foregoing is the “Provision for Termination for Cause”.)
- Return of Materials. If requested by the Customer, ACTO will make all the Customer Materials (as defined below) available to the Customer for electronic retrieval for a period of thirty (30) days following the date of termination, but thereafter ACTO may, but is not obligated to, delete stored Customer Materials.
- Confidentiality. The party receiving information agrees at all times during the Term of this Agreement and thereafter, to hold in strictest confidence, and not to use, except in connection with this Agreement and any Confidential Information of the disclosing party. Each disclosing Party’s Confidential Information is the sole property of the disclosing party. Recipient agrees not to use discloser’s Confidential Information for any purpose other than the performance of this Agreement or an Order Form or SOW. Recipient of Confidential Information agrees not to disclose discloser’s Confidential Information to third parties without the prior written authorization of the disclosing party, and except as necessary for the performance of this Agreement and under an agreement by a third party to be bound by obligations of confidentiality no less restrictive than this provision. Recipient of Confidential Information shall safeguard discloser’s Confidential Information with the same standard of care used with recipient’s Confidential Information but in any event no less than reasonable care. At any time, upon the request of the disclosing party, all tangible expressions of disclosing party’s Confidential Information in the recipient’s possession shall be delivered to the disclosing party, or destroyed, at the discloser’s option. As used herein, “Confidential Information” means any proprietary or confidential information, technical data, trade secrets or know-how, including, but not limited to, research, product plans, products, services, customer lists and customers, software, developments, inventions, processes, formulas, technology, designs, drawings, marketing plans, finances and other business information learned by the recipient in the course of this Agreement or disclosed to it by the disclosing party in writing or electronically, or by drawings or inspection of documents or other tangible property.
- Non-Confidential Information. The Parties hereby agree the obligations of Section 8 shall not extend to:
- information prior to the time of disclosure in the public domain;
- information, after disclosure, becomes part of the public domain by publication or otherwise, provided such publication is not in violation of this Agreement or any other confidentiality agreement;
- information the receiving party can establish in writing was already known to it or was lawfully in its possession prior to the time of disclosure and was not acquired, directly or indirectly, from the disclosing Party;
- information received lawfully by the recipient from a third party, provided, such third party was not obligated, to the recipient’s knowledge after due inquiry, to hold such information in confidence;
- information which was independently developed by the recipient without reference to any Confidential Information as established by appropriate written documentation; and
- information that the recipient is compelled to disclose by a court or other tribunal of competent jurisdiction, provided, in such case, the receiving party shall immediately give as much advance notice as feasible to the disclosing party so that the disclosing party may seek a protective order or other remedy from said court or tribunal.
In any event, the recipient of Confidential Information shall disclose only that portion of the Confidential Information which, in the opinion of its legal counsel, is legally required to be disclosed and will exercise reasonable efforts to ensure any such information so disclosed will be accorded confidential treatment by said court or tribunal.
- Indemnity by Customer for Misuse of ACTO Products. The Customer agrees to indemnify and defend ACTO, its affiliates, and ACTO’s and its affiliates’ respective officers, directors, employees, shareholders, agents, successors, and permitted assigns (each an “Indemnified Person”) harmless from and against any and all claims, losses, damages, liabilities, expenses, costs and charges whatsoever, (including reasonable legal fees) (“Claims and Losses”) resulting from: (i) misuse of the Platform; (ii) inaccuracies or deficiencies in any materials supplied to ACTO by the Customer; (iii) infringement of third party intellectual property rights in any materials included in the Customer Materials; or (iv) breach of any applicable laws.
- Monitoring Use of ACTO Platform. ACTO has no obligation to monitor for misuse of the ACTO product but may do so and may prohibit any use of the ACTO product which it believes may be (or maybe alleged to be) in violation of this Agreement or any applicable laws.
- Customer Cooperation. The Customer will cooperate with ACTO’s reasonable requests for information and direction, and on a timely basis will provide ACTO with all materials required to complete the work/services set out in the applicable Order Form and SOW. The accomplishment of specific tasks and/or objectives is dependent upon the availability and accuracy of the Customer provided resources and information. Such information includes detailed, precise, and clear specifications relating to any Services provided hereunder. Failure to make such resources available to the ACTO may affect the timeliness and effectiveness of the activities to be performed by the ACTO. ACTO is a software company, and while ACTO is familiar with the legal environment and may make suggestions based on its experience in the industry, it is the Customer’s responsibility to supply us with accurate information, materials, and instructions which comply with all legal requirements applicable to the activities contemplated by this Agreement in the Customer’s industry and locations. The Customer is responsible to ensure that the commercialization of its products complies with all applicable laws.
- Ownership of Customer Materials. All information and materials supplied to ACTO by the Customer under this Agreement (the “Customer Materials”) shall remain the property of the Customer. The Customer hereby grants ACTO a license to use the Customer Materials for the sole purpose of performing this Agreement, Order Forms and SOWs.
- Accuracy and Content of Customer Materials. The Customer is solely responsible for the accuracy and content of the Customer Materials. ACTO is not responsible for the accuracy and content of the Customer Materials uploaded on the Platform.
- ACTO Know-How. Subject to the provisions hereof respecting confidentiality, ACTO shall be free to use any ideas, concepts or know-how developed or acquired by ACTO during ACTO’s performance of this Agreement and SOW to the extent obtained and retained by ACTO's personnel as impressions and general learning (the “Know-How”). Nothing in this Agreement shall be construed to preclude ACTO from enhancing the Platform based on the accumulation of know-how.
- Ownership of ACTO Platforms and Software. ACTO shall own and retain all right, title and interest in and to (a) the Platform and ACTO’s software and all improvements, enhancements or modifications thereto, (b) any software, applications, inventions, or other technology developed by ACTO in connection with services or support provided hereunder, (c) all intellectual property rights related to any of the foregoing, and (d) the ACTO Data (as defined in Schedule-A). No rights or licenses are granted except as expressly set out in this Agreement.
- License. ACTO retains ownership of the Platform, including but not limited to all code, algorithms, Algorithm Update (as defined in Schedule-A), and software. The Customer will not interfere with such ownership by, among other things, reverse engineering or sharing the Platform with others. The Customer is solely responsible for the Customer Materials. ACTO grants the Customer an exclusive, non-transferable, non-sub-licensable, revocable license to use the Platform in accordance with the terms of this Agreement and terms more specifically stated in Schedule-A during the Term. The license may be revoked by ACTO in the event of a misuse of the Platform or breach of this Agreement by the Customer.
- Limitation of Liability. NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR LIABILITY ARISING FROM ACTO’S OBLIGATIONS UNDER THE CONFIDENTIALITY SECTION, ACTO, AND ITS OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE:
- FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR ACCESS DELAYS OR ACCESS INTERRUPTIONS OR NON-DELIVERY OR MIS-DELIVERY OF DATA BY AN ACT OR OMISSION OF A THIRD PARTY OR THE CUSTOMER; OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS;
- FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES;
- FOR ANY MATTER BEYOND ACTO’S REASONABLE CONTROL;
- FOR ANY INACCURACIES, OMISSIONS, IN, OR INFRINGEMENT OF THE INTELLECTUAL PROPERTY OF THIRD PARTIES OF, THE CUSTOMER MATERIALS INCORPORATED INTO THE ACTO PRODUCT;
- FOR ANY FAILURE OF THE ACTO PRODUCT TO MEET LEGAL OR REGULATORY REQUIREMENTS FOR TRAINING APPLICABLE TO THE CUSTOMER’S INDUSTRY;
- IN THE EVENT THAT THERE IS A FINDING OF LIABILITY PURSUANT TO THE DISPUTE RESOLUTION PROVISIONS OF THIS AGREEMENT THAT IS CONTRARY TO THE FOREGOING, FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY THE CUSTOMER TO ACTO FOR THE PRODUCT UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT ACTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
- Privacy Protection. ACTO will seek guidance from the Customer in order to comply with all applicable privacy and data protection laws of its jurisdiction in performing its obligations hereunder, and if the Customer has breached the foregoing, such breach shall be included in the definition of the Customer “material breach”.
- Injunctive Relief. Each Party acknowledges that any event that results in a material breach of the Agreement may cause irreparable harm and significant injury to an extent that may be extremely difficult to ascertain. Accordingly, each Party agrees that the other Party may have, in addition to any other rights or remedies available to it at law or in equity, the right to seek injunctive relief to enjoin any material breach.
- Logo Use. ACTO may use the Customer’s logo upon prior written consent of the Customer and the Customer agrees to not unreasonably withhold such consent.
22.1 Writing means any form of written communication, including electronic.
22.2 Headings. Headings are for convenience only and do not form part of the terms of this Agreement.
22.3 Relationship. Except as expressly set out herein, nothing contained in this Agreement will create or imply any agency relationship between the Parties, nor will this Agreement be deemed to constitute a joint venture or partnership between the Parties.
22.4 Waiver. No delay or omission by a Party to exercise any right or power it has under this Agreement or to object to the failure of any covenant of the other Party to be performed in a timely and complete manner, will impair any such right or power or be construed as a waiver of any succeeding breach or any other covenant. All waivers must be in writing and signed by the Party waiving its rights.
22.5 Force majeure. ACTO’s obligations and the timeframes established under this Agreement or Statement of Work shall be suspended to the extent and for the period that performance is prevented by reason of force majeure or any cause beyond the reasonable control of the ACTO.
22.6 Survival. All sections of this Agreement which by their nature should survive expiration or earlier termination of this Agreement will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
22.7 Severability. 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.
22.8 Assignment. This Agreement is not assignable, transferable or sublicensable by either party except with the other party’s prior written consent. This Agreement may not be assigned to a successor to all or substantially all of the business to which this Agreement relates (whether by merger, consolidation, asset transfer or similar transaction) without the prior consent of the other party. If it is so assigned without consent, in such a case the acquiring entity or new entity shall automatically be assigned this Agreement and shall assume all obligations of the acquired/ merged party herein. Any other assignment or delegation by either party without the prior written consent of the other party is void.
22.9 Entire Agreement. This Agreement, together with the Software License Terms, Order Form, and SOW, constitutes the most recent agreement between the Parties, superseding all previous written and oral agreements relating to the subject matter of this Agreement. Unless expressly stated otherwise, the terms of this Agreement shall prevail over any conflicting terms provided in the SOW or the Order Form.
22.10 Amendments. All waivers and modifications must be in writing and signed by both parties, except as otherwise provided herein.
22.11 Notices. All notices under this Agreement must be in writing and sent to the applicable address below and will be deemed effective when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or email; 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.
If to ACTO:
Name: Jenny Yeung
E-mail: [email protected]
Address: 60 Atlantic Ave Suite 200, Toronto, ON M6K 1X9, Canada
If to the Customer:
22.12 Application of this Agreement. This Agreement is binding on the Parties. This Agreement shall apply to each Order Form and SOW entered into between the Parties during the Term or Renewal Term. All Order Forms and SOWs are deemed to form part of this Agreement. The Parties may enter into an additional Order Form and/or SOW, which shall also form part of this Agreement.
22.13 Governing Law. This Agreement shall be governed by the laws of the State of Delaware without regard to its conflict of law’s provisions. The Parties agree that all matters related to this Agreement, or any dispute between the Parties, shall attorn to the exclusive jurisdiction of the courts in State of Delaware.
22.14 Counterparts. This Agreement may be executed in counterparts and by means of facsimile or electronic signature. Each of the counterparts, when so executed and delivered, shall be an original, but such counterparts shall together constitute one and the same Agreement.