Last revised: Jan 1st, 2021
“Administrator” shall mean the individual identified in the Software Services and Implementation Agreement as the Initial Administrator and such other individuals as are designated as Administrators by an authorized customer representative (including the then current Administrator) in a written notice to ExpertFile.
“Authorized User” shall mean any employees, affiliates, agents, independent contractors or consultants of Customer who are authorized or otherwise designated or permitted by Customer to access and use the Services pursuant to the Agreement.
“Customer Data” means any text, images, data or other content transmitted by Customer or Authorized Users to ExpertFile in connection to Customer’s and/or Authorized Users’ use of the Services.
“Customer Interface” means the web-based interface hosted by ExpertFile by which Customer and Authorized Users may access the Services and/or any downloadable desktop or mobile device application provided by ExpertFile.
“Enhancement” means any correction, modification, customization, revision, enhancement, improvement, update, upgrade, new release or other change that is released generally by ExpertFile for similarly situated customers of the Services.
“Intellectual Property Rights” means all rights of a person or business entity in, to, or arising out of: (i) any Canadian, international or foreign patent or any application therefore and any and all reissues, divisions, continuations, renewals, extensions and continuations-in-part thereof; (ii) inventions (whether patentable or not in any country), invention disclosures, improvements, trade secrets, proprietary information, know-how, technology and technical data; (iii) copyrights, copyright registrations, mask works, mask works registrations, applications, moral rights, patents, trademarks, trade secrets, and rights of personality, privacy and likeness, whether arising by operation of law, contract, license or otherwise; and (iv) any other similar or equivalent proprietary rights anywhere in the world.
“Services” means the management and presentation of descriptive information for individuals, organizations and their employees and representatives, event organizers, meeting planners and representatives of the media (all collectively the “Users”) and events and intra-event sessions, the indexing and searching of this information, and support for communications and notifications among and between the Users regarding the events, administrative tools for managing all of the preceding, using Software run on ExpertFile’s hosting servers or those of its hosting service provider(s) intended to enable Customer and Authorized Users to interact with the same via the worldwide web, as such Services may be revised as provided herein, and customer support services provided through such phone, e-mail or other contact mechanisms as our listed at http://www.ExpertFile.com/about.html, which support services will be delivered between 9 am and 5 pm Eastern Time in the United States, Monday through Friday (holidays excepted) with responses to customer service inquiries by the next business day.
“Software” means the software application(s) used by ExpertFile to provide the Services and any Enhancements thereto made available by ExpertFile to Customer and Authorized Users from time to time, including any desktop or mobile device application provided to Authorized Users by ExpertFile to facilitate ExpertFile’s provision of the Services. ExpertFile shall not be obligated to provide Enhancements that include new features or functionality for which ExpertFile generally charges a separate fee.
“Software and Services Implementation Agreement” (may also be referred to as the Software Purchase Agreement) means the document issued by Customer to order Services hereunder also referred to in these terms as the “Agreement”
“Term” means the Initial Term and any applicable Renewal Terms, as set forth in the “Software and Implementation Services Agreement”
“User Documentation” means the written material provided to Customer to describe the functionality and specifications of the Software and/or Services.
“User Identification” means the unique user identification name and password issued or otherwise assigned to each Authorized User for access to and use of the Services through the Customer Interface.
“ExpertFile Technology” means the Software and any know-how, processes, methodologies, specifications, designs, inventions, functionality, graphics, techniques, methods, applications, user manuals, online documentation, products or other technology and materials of any kind, or any Enhancement thereto, used by ExpertFile in connection with the performance of the Services or made available by ExpertFile to Customer, any Authorized User or any third party.
2. Access to ExpertFile Services
2.1 Services. Subject to the terms and conditions of the Agreement, ExpertFile will perform the Services on behalf of Customer and Authorized Users during the Term. Promptly after the Effective Date set forth in the Agreement, ExpertFile will send User Identification information to allow the Initial Administrator to use the Services, including the creation of User Identification information for other Authorized Users including additional Administrators for the Customer. ExpertFile may delegate the performance of certain portions of the Services to third parties, provided ExpertFile remains primarily responsible to Customer for the delivery and performance of the Services. ExpertFile will host and maintain the Customer Interface, and provide Customer and Authorized Users access to the Customer Interface pursuant to password protected user accounts. ExpertFile may in its sole discretion modify, enhance or otherwise change the Software and/or Customer Interface without adversely affecting the Services features.
2.2 Restrictions on Use of Services. Customer agrees not to use or launch any automated system, including without limitation, “robots,” “spiders,” “offline readers,” etc., that accesses the Services in a manner that sends more request messages to the ExpertFile servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser. Customer agrees not to collect or harvest any personally identifiable information, including account names, from the Services nor to use the communication systems provided by ExpertFile for any commercial solicitation purposes. Customer agrees not to use any portion of the Services as a destination linked from any unsolicited bulk messages or unsolicited commercial messages. In addition, Customer agrees not to engage in any of the following prohibited actions: (i) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (ii) taking any action that imposes, or may impose at ExpertFile’s sole discretion an unreasonable or disproportionately large load on our infrastructure; (iii) uploading invalid data, viruses, worms, or other software agents through the Services; (iv) impersonating another person or otherwise misrepresenting Customer’s affiliation with a person or entity, conducting fraud, hiding or attempting to hide Customer’s (or an Authorized User’s) identity; (v) interfering with the proper working of the Services; or (vi) bypassing the measures that ExpertFile may use to prevent or restrict access to the Services.
2.3 Non-exclusivity. Customer acknowledges that the rights granted to it under it’s Agreement are nonexclusive, and that, without limiting the foregoing, nothing in its Agreement will be interpreted or construed to prohibit or in any way restrict ExpertFile’s right to (a) license, sell or otherwise make available the ExpertFile Technology or Services to any third party; (b) perform any services for any third party; or (c) license, purchase or otherwise acquire any software, technology, products, materials or services from any third party.
2.5 Authorized Users. Customer acknowledges and agrees that notwithstanding any permission to Authorized Users granted hereunder to access and use the Services, Customer is liable for all acts and omissions of its Authorized Users.3. License; Restrictions on Use
3.2 General Restrictions and Limitations. Section 3.1 sets forth the entirety of Customer’s right to access and use the Services and to make the Services available to Authorized Users. The License does not include the right to, and Customer will not directly or indirectly, (a) enable any person or entity other than Authorized Users to access and use the Services or ExpertFile Technology; (b) modify or create any derivative work based upon the Services or ExpertFile Technology; (c) engage in, permit or suffer to continue any unauthorized copying, reselling or distribution of the Services or ExpertFile Technology; (d) grant any sublicense or other rights to the Services or ExpertFile Technology; (e) reverse engineer, disassemble or decompile all or any portion of, or attempt to discover or recreate the source code for, any Software; or (f) remove, obscure or alter any Intellectual Property Rights notice related to the Software, the Services or the ExpertFile Technology. Customer will ensure, through proper instructions and enforcement actions, that all access to and use of the Services by Customer or Authorized Users’, or otherwise through Customer’s facilities, equipment, identifiers or passwords, will conform to the Agreement and will be made and used solely for proper and legal purposes, and will be conducted in a manner that does not violate any law or regulation, the rights of any third party or the Agreement.
3.3 License to ExpertFile. Subject to the terms and conditions of the Agreement, Customer hereby grants ExpertFile a worldwide, non-exclusive, royalty-free license during the Term to use, reproduce, electronically distribute, transmit, have transmitted, perform, display, store, archive, and index the Customer Data in order to provide the Services, and for any other purpose, including the publishing of statistics or reports, provided that the identity of the Customer and/or its Authorized Users shall not be made available to any such third party. In conjunction with the foregoing, ExpertFile reserves the right to collect non-identifying and aggregate information about Customer and its Authorized Users and Customer understands and agrees that, in addition to the rights set out above, ExpertFile retains the right to share such aggregate information with: (i) ExpertFile’s collaborators and partners; and (ii) other third parties, from time to time, to analyze the effectiveness of and/or improve the Services, and for other similar purposes.
3.4 Software License. Subject to the terms and conditions of the Agreement, ExpertFile hereby grants to Customer a worldwide, personal, non-exclusive, non-transferable (except as expressly set out in the Agreement), time-limited license to possess, execute and use the Software to the extent necessary to use the Services. Customer agrees not to (and will not allow, direct or authorize any Authorized User or other person to): (i) use the Software for any purpose other than to make use of the Services; or (ii) use the Software other than in accordance with this Agreement.
3.5 Reservation of Rights. ExpertFile reserves all rights to the Services not otherwise expressly granted in this Section 3. No title to or ownership of the Services, the Software or the ExpertFile Technology, or any Intellectual Property Rights associated therewith is transferred to Customer, any Authorized User or any third party under the Agreement.4. Access to the Services
4.1 Equipment, Services and Facilities. Customer is solely responsible for providing, installing and maintaining at its own expense all equipment, facilities and services necessary to enable Authorized Users’ access and use the Services through the Customer Interface, including, without limitation, all computer hardware and software, network system, communication service and Internet access.
4.3 Hours of Operation; Scope of Services. ExpertFile reserves the right at any time with reasonable advance notice to Customer to temporarily change the Services’ hours of operation or to limit Customer’s and Authorized Users’ access to and use of the Services in order to perform repairs, make modifications, or to do so without advance notice as a result of circumstances beyond ExpertFile’s reasonable control. ExpertFile may alter or modify all or part of the Services from time to time. Such alterations and modifications, or both, may include, without limitation, the addition or withdrawal of features, products, services, software or changes in instructions.
4.4 Security. ExpertFile has implemented commercially reasonable technical and organizational measures designed to secure Customer Data from accidental loss and from unauthorized access, use, alteration or disclosure. However, ExpertFile cannot guarantee that unauthorized third parties will never be able to defeat those measures or use Customer Data for improper purposes. Customer acknowledges that all Customer Data is provided at Customer’s and Authorized Users’ own risk.5. Right to Monitor
ExpertFile will have the right to review and monitor all use of the Services to ensure compliance with all of the terms of the Agreement. ExpertFile will also have the right to analyze user behaviour as a measure of interest in, and use of, the ExpertFile website and emails, both on an individual basis and in the aggregate, and otherwise to collect and create metadata about Customer’s use of the Services provided that such metadata is never disclosed to any third party other than in an anonymized and aggregate format.6. Ownership
6.1 ExpertFile Content. Customer hereby acknowledge that all intellectual property rights in the Services, the Software and the ExpertFile Technology (excluding any Customer Data), collectively under this part the “ExpertFile Content”, are owned by ExpertFile, or ExpertFile’s licensors or partners and protected by applicable intellectual property and other laws, including but not limited to copyright, trade-mark, patent, confidential information and trade secret, and Customer will not use such proprietary information or materials in any way except for use of the Services in compliance with the terms of this Agreement. In particular, Customer agrees not to (i) permit any third party to access the ExpertFile Content, (ii) copy, reproduce, alter, adapt, aggregate, modify, publish, translate, deface, transmit, distribute, publicly perform or display, sell, decompile, disassemble, reverse engineer, or create derivative works from any aspect of the ExpertFile Content, or (iii) access the ExpertFile Content in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the ExpertFile Content.
6.2 Ownership of Customer Data. Subject only to the limited license expressly granted hereunder and ExpertFile’s rights under Sections 3 and 4 (above), as between Customer and ExpertFile, Customer and its Authorized Users shall retain all right, title and interest in and to the Customer Data and all Intellectual Property Rights therein. The Agreement will not confer on ExpertFile any right of ownership or interest in the Customer Data or the Intellectual Property rights therein, except in accordance with Section 3.3 hereof. Customer is solely responsible for the Customer Data that Authorized Users upload, publish, display, link to or otherwise make available (hereinafter, “post”) on the Service, and Customer agrees that ExpertFile is only acting as a passive conduit for the online distribution and publication of the Customer Data. ExpertFile will not review, share, distribute, or reference any such Customer Data except as provided herein or as may be required by law.
6.3 Customer Representations Regarding Customer Data. Customer hereby represents and warrants that Customer owns all Customer Data posted using the Services or otherwise has the right to grant the license to ExpertFile set forth in this Terms f Use in respect of the Customer Data. Customer and its Authorized Users shall not post Customer Data that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to an Authorized User, or any other person or entity; (ii) may create a risk of any other loss or damage to any person or property; (iii) may constitute or contribute to a crime or tort; (iv) may contain any information or content that is unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, or otherwise objectionable; (v) may contain any information or content that is illegal; (vi) may contain any information or content that Customer does not have a right to make available under any law or under contractual or fiduciary relationships; or (vii) may violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy (any such Customer Data being referred to as “Infringing Data”). Customer represents and warrants that the Customer Data does not and will not violate third-party rights of any kind, including without limitation any Intellectual Property Rights, rights of publicity and privacy. Customer understands and agrees that any loss or damage of any kind that occurs as a result of the content of any Customer Data is solely Customer’s responsibility. In the event ExpertFile becomes aware of any Infringing Data, ExpertFile may remove or change the Infringing Data.7. Privacy and Disclosure
7.2 Feedback. Customer may choose to or ExpertFile may invite Customer and/or Authorized Users to submit comments or ideas about the Services, including without limitation about how to improve the Services or ExpertFile products (“Ideas”). By submitting any Ideas, Customer on its own behalf and on behalf of each Authorized User agrees that such disclosure is gratuitous, unsolicited and without restriction and will not place ExpertFile under any fiduciary or other obligation, that ExpertFile is free to disclose the Ideas on a non-confidential basis to anyone or otherwise use the Ideas without any additional compensation to Customer.
7.3 Disclosure of Customer Data. ExpertFile undertakes not to disclose to any third party any Customer Data, other than to the extent necessary in order to perform the Services, negotiate this Agreement and provide suggestions or Ideas. ExpertFile agrees that it shall use the same degree of care that it utilizes to protect its own confidential information of a similar nature to protect the secrecy of and avoid disclosure or use of Customer Data except as required to perform the Services. Furthermore, Customer Data may be disclosed insofar as such disclosure is necessary to allow ExpertFile to comply with applicable law, with a decision by a court of law or lawfully required by a public authority, but then only after first notifying the Customer of the required disclosure, unless such disclosure is prohibited. The foregoing confidentiality obligation shall apply during the Term and for a period of three (3) years after the expiration of the Agreement.8. Disclaimer of Warranties
EXCEPT AS EXPRESSLY SET FORTH IN THE HEREIN, ExpertFile DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO ANY ERROR, DEFECT, DEFICIENCY, INTERRUPTION, INFRINGEMENT OR NONCOMPLIANCE IN THE SERVICES, THE SOFTWARE, THE ExpertFile TECHNOLOGY OR ANY OTHER ITEMS PROVIDED BY, THROUGH OR ON BEHALF OF ExpertFile, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY IMPLIED WARRANTY ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. Some countries and jurisdictions do not allow the exclusion or limitation of implied warranties, so the above disclaimers and exclusions may not apply to Customer.
ExpertFile DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING, AND ExpertFile WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN CUSTOMER AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.9. Indemnification
9.1 Indemnity by Customer. Customer shall defend, indemnify and hold harmless ExpertFile and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) Customer’s and Authorized Users’ use of and access to the Service, including any data or work transmitted or received by Customer or Authorized Users; (ii) Customer’s or an Authorized User’s violation of any term of the Agreement; (iii) Customer’s or an Authorized User’s violation of any third-party right, including without limitation any right of privacy, publicity rights or Intellectual Property Rights; (iv) Customer’s or an Authorized User’s violation of any law, rule or regulation of Canada or any other country; (v) any claim or damages that arise as a result of the posting, transmission or storage of any of Customer; or (vi) any other Party’s access and use of the Service with Customer’s or an Authorized User’s unique username, password or other appropriate security code.
9.2 Indemnity by ExpertFile. ExpertFile shall defend, indemnify and hold harmless Customer and its subsidiaries, agents, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all third party claims that the Software and/or Services as provided by ExpertFile infringe a copyright or misappropriates a trade secret of that third party. If the Software and/or the Services become, or, in ExpertFile’s opinion are likely to become, the subject of such a claim, ExpertFile shall have the right to (i) obtain for Customer the right to continue using the Software and the Services, (ii) replace or modify the Software and/or the Services so that they become non-infringing, or (iii) terminate the Services and the license granted hereunder to the Software and provide a pro rated refund to Customer of the fees paid for the Services for the portion of the Term remaining at the time of such termination. THE FOREGOING STATES ExpertFile’S ENTIRE LIABILITY AND CUSTOMER’S EXCLUSIVE REMEDIES FOR INTELLECTUAL PROPERTY RIGHTS INFRINGEMENT.
ExpertFile will have no liability for any infringement claim to the extent it (i) is based on modification of the Services or Software by or at the direction of Customer or an Authorized User; (ii) results from failure of Customer to use an updated version of the Services or Software made available to Customer; (iii) is based on the combination or use of the Software or the Services with any other software, program or device not provided or specified by ExpertFile if such infringement would not have arisen but for such use or combination or (iv) results from Customer’s operation of the Software or the Service in a manner that is inconsistent with its intended use.
9.3 Indemnity Mechanics. The foregoing indemnities are contingent on the indemnified party: (a) promptly notifying the indemnifying party of any claim; (b) permitting the indemnifying party to control and manage the defence of any claim (and any settlement); and (c) cooperating with the indemnifying party in the defence of any claim (and any settlement). All costs and expenses incurred by the indemnifying party in providing the foregoing indemnity shall be paid by the indemnifying party. Any indemnified party may join in defense with counsel of its choice at its own expense. The indemnifying party will not settle or resolve any such claim in a manner that imposes any liability or obligation on the indemnified party without the advance written approval of the indemnified party, which must not be unreasonably withheld or delayed.10. Limitations of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ExpertFile AND CUSTOMER, THEIR RESPECTIVE DIRECTORS, EMPLOYEES OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THE SERVICE OR ANY OTHER ASPECT OF THIS AGREEMENT. UNDER NO CIRCUMSTANCES WILL ExpertFile BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY UNAUTHORIZED ACCESS OR USE OF THE CUSTOMER DATA.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ExpertFile ASSUMES NO LIABILITY OR RESPONSIBILITY FOR (I) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM CUSTOMER’S OR AUTHORIZED USERS’ ACCESS TO AND USE OF THE SERVICES, INCLUDING BUT NOT LIMITED TO ERRORS OR INTERRUPTIONS IN THE SERVICES; (II) ANY ERRORS OR OMISSIONS IN, OR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF, ANY MATERIALS POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; (III) DAMAGE CAUSED BY THE POSTING, TRANSMISSION OR STORAGE OF CUSTOMER DATA SUBMITTED VIA AUTHORIZED USER ACCOUNTS, OR (IV) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY AUTHORIZED USER OR THIRD PARTY. IN NO EVENT SHALL ExpertFile, ITS DIRECTORS, EMPLOYEES, OR LICENSORS BE LIABLE TO CUSTOMER OR ITS AUTHORIZED USERS FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AGGREGATE AMOUNT CUSTOMER PAID OR PAYABLE TO ExpertFile HEREUNDER DURING THE 12 MONTHS PRECEDING THE CLAIM.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF ExpertFile HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.