These Go Evo Terms and Conditions form part of the Agreement between Go Evo and the Customer entering into an Order Form with Go Evo Inc. (“Go Evo”) for Go Evo Services.
Definitions
- “Agreement” means these Terms and Conditions together with the applicable Order Form.
- “Customer Data” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads, transmits to, or enters into the Go Evo SaaS Services.
- “Fees” has the meaning set out in Section 7.
- “Licensed Third Party Technology” means third-party technology that is licensed under separate license terms and not under this Agreement.
- “Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations, and adaptations, and “Modify” has a corresponding meaning.
- “Order Form” means each order form that references these Terms and Conditions once executed by both Parties.
- “Permitted User” means those employees authorized by Customer on Customer’s behalf in accordance with Section 5 to access and use the Go Evo SaaS Services in accordance with this Agreement.
- “Personal Information” means information about an identifiable individual.
- “Go Evo SaaS Services” means services through which Go Evo hosts and makes available the Go Evo solution for municipal asset planning and data collection. The term “Go Evo SaaS Services” includes the Technical Support Services but does not include Professional Services.
- “Professional Services” means the consulting, configuration, implementation, and other professional services set out on an Order Form. The term “Professional Services” does not include Go Evo SaaS Services.
- “Go Evo Services” means the Go Evo SaaS Services and the Professional Services, collectively, and any part thereof.
- “Technical Support Services” means the support services described in Section 6.
- “Term” has the meaning set out in Section 11(a).
- “Website” means any websites used by Go Evo to provide the Go Evo SaaS Services, including the website[s] located at https://go-evo.com
- Go Evo Services
- Provisioning of the Go Evo SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, Go Evo will make the Go Evo SaaS Services available to Customer on the terms and conditions set out in this Agreement.
- Provisioning of the Professional Services. Go Evo will use commercially reasonable efforts to provide Customer the Professional Services described in the Order Form (if any), and Customer will pay to Go Evo the Fees for the Professional Services in accordance with the terms herein.
- Restrictions on Use. Customer must not itself, and will not permit others to:
- sub-license, sell, rent, lend, lease or distribute the Go Evo SaaS Services or any intellectual property rights therein or otherwise make the Go Evo SaaS Services available to others;
- use the Go Evo SaaS Services to facilitate or provide timesharing, service bureau use or commercially exploit the Go Evo SaaS Services;
- use or access the Go Evo SaaS Services in violation of any applicable law or intellectual property right;
- use the Go Evo SaaS Services in a manner that threatens the security or functionality of the Go Evo SaaS Services;
- use the Go Evo SaaS Services to create, collect, transmit, store, use or process any Customer Data:
- that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
- that Customer does not have the lawful right to create, collect, transmit, store, use, or process; or
- that violates any applicable laws, or infringes, violates, or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right, or right of publicity);
- Modify the Go Evo SaaS Services;
- reverse engineer, decompile or disassemble the Go Evo SaaS Services;
- remove or obscure any proprietary notices or labels on the Go Evo SaaS Services, including brand, copyright, trademark, and patent or patent pending notices;
- use the Go Evo SaaS Services for the purpose of building a similar or competitive product or service;
- perform any vulnerability, penetration, or similar testing of the Go Evo SaaS Services; or
- use the Go Evo SaaS Services for any purpose or in any manner not expressly permitted in the Agreement.
- Suspension of Access; Scheduled Downtime; Modifications. Go Evo may, at its discretion:
- suspend Customer’s access to or use of the Go Evo SaaS Services or any component thereof:
- for scheduled maintenance;
- if Customer or any Permitted User violates, or Go Evo reasonably suspects Customer or any Permitted User has violated, any provision of this Agreement; or
- to address any emergency security concerns; and
- Modify the Go Evo SaaS Services.
Customer is required to accept all patches, bug fixes, and updates made by or on behalf of Go Evo to the Go Evo SaaS Services.
- Licensed Third Party Technology; Third-Party Integrations. Customer will accept and comply with the license terms applicable to Licensed Third Party Technology. Except for Licensed Third Party Technology identified in an Order Form, Customer is responsible for separately obtaining or licensing such technology. The Services may provide links to or integrations with third-party websites and services (e.g. DropBox). Such third parties are not under Go Evo’s control, and if Customer chooses to access, use or integrate with such third party service, Customer does so entirely at its own risk. Customer’s use of the services provided by such third parties may be subject to additional terms and conditions made available to Customer by such third parties.
Ownership; Reservation of Rights
- (a) Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to Go Evo a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process, and transmit Customer Data to provide the Go Evo Services. Go Evo may collect and analyze data and other information relating to the provision, use, and performance of the Go Evo Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, Go Evo may: (i) use such data and information to improve and enhance the Go Evo Services and for other development, diagnostic and corrective purposes in connection with the Go Evo Services and other Go Evo offerings; and (ii) disclose such data solely in aggregated or other de-identified form in connection with its business. Customer acknowledges that Customer Data will be hosted by and stored on Microsoft Azure and/or such other hosting providers chosen by Go Evo in its reasonable discretion.
- (b) Go Evo or its licensors retain all ownership and intellectual property rights in and to: (i) the Go Evo Services; (ii) anything developed or delivered by or on behalf of Go Evo under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii).
- (c) All rights not expressly granted by Go Evo to Customer under this Agreement are reserved.
Privacy
Customer agrees (on Customer’s behalf and on behalf of each Permitted User) to Go Evo’s access, use, collection, storage, and disclosure of Customer’s and each Permitted User’s Personal Information for the purposes authorized under this Agreement. Customer understands that Personal Information, including the Personal Information of Permitted Users, will be treated in accordance with Go Evo’s privacy policy located at www.go-evo.com/privacy.
Customer User Account
Upon Customer’s request, Go Evo will issue an account (a “Customer User Account”) to Customer for use by individuals who are employees of Customer that Customer wishes to have access to and use of the Go Evo SaaS Services (each, a “Permitted User”). Customer will ensure that Permitted Users only use the Go Evo SaaS Services through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ compliance with this Agreement. Customer will promptly notify Go Evo of any actual or suspected unauthorized use of the Go Evo SaaS Services. Go Evo reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.
Support; Security
- Customer will generally have access to Go Evo’s technical support: (i) via the online chat service from 8:00 A.M. each Monday to Friday to 6:00 P.M. each Monday to Friday (excluding statutory and civic holidays observed in Toronto, Ontario and (ii) via email at support@Go-Evo.com
- Go Evo has implemented and maintains industry-standard practices and procedures to prevent unauthorized access to Customer Data. Further information is available upon Customer’s request.
Fees and Payment
- Fees. Customer will pay to Go Evo the fees described in any Order Form (the “Fees”). If Customer’s use of the Go Evo SaaS Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted on an Order Form, all Fees are identified in Canadian dollars and are payable in advance.
- Changes to the Fees. Go Evo reserves the right to change the Fees and institute new charges on each anniversary of the Term upon providing not less than 30 days prior notice to Customer.
- Invoicing. Go Evo will prepare and send to the Customer, at the then-current contact information on file with Go Evo, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date.
- Disputed Invoices or Charges. If Customer believes Go Evo has charged or invoiced Customer incorrectly, Customer must contact Go Evo no later than 30 days after having been charged by Go Evo or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
- Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Go Evo reserves the right to suspend Customer’s access to and use of the Go Evo SaaS Services and any delivery of Professional Services until all due amounts are paid in full. Any late payment will be increased by the costs of collection (if any) and will incur interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
- Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than taxes based on the net income or profits of Go Evo.
- Suspension. Any suspension of the Go Evo Services by Go Evo pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
Confidential Information
- For the purposes of this Section, a Party receiving Confidential Information will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, the Recipient should recognize as being confidential; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.
- Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of the Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of the Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
- Exceptions to Confidentiality. Notwithstanding Section 8(b), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Go Evo, to potential assignees, acquirers or successors of Go Evo if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Go Evo.
Warranty; Disclaimer; Indemnity
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LEGAL WARRANTIES, CONDITIONS OR REPRESENTATIONS IN CERTAIN CIRCUMSTANCES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOLLOWING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
- Customer Warranty. Customer represents and warrants to, and covenants with Go Evo that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable third party consents and permissions, and otherwise has all authority, in each case as required by applicable laws, to enable Go Evo to provide the Go Evo SaaS Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Go Evo and to or from all applicable third parties.
- GENERAL DISCLAIMER. Go Evo DOES NOT WARRANT THAT THE Go Evo SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE Go Evo SERVICES EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE Go Evo SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY Go Evo TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, Go Evo HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS, AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, Go Evo EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION, OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE Go Evo SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
- Go Evo will defend, indemnify and hold harmless Customer, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties, and legal fees) from third-party (including Permitted Users) claims or allegations that Customer’s or any Permitted User’s use of the Go Evo SaaS Services in accordance with this Agreement infringes the Intellectual Property Rights of such third party. Customer will defend, indemnify and hold harmless Go Evo, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all liability (including damages, recoveries, deficiencies, interest, penalties, and legal fees) from third-party (including Permitted Users) claims or allegations directly or indirectly arising from or in connection with: (i) Customer Data; or (ii) use of the Go Evo Services (or any part thereof) by Customer or any Permitted User in combination with any third-party software, application or service to the extent that such use gave rise to the applicable liability.
- Indemnity Procedure. The indemnified Party will promptly notify the indemnifying Party of any claim or allegation that is subject to indemnification pursuant to this Section, provided that any delay in providing such notice will not limit the indemnifying Party’s obligations in this Section except to the extent that such delay materially prejudices the indemnifying Party’s ability to defend such claim or allegation. The indemnified Party will fully cooperate with the indemnifying Party in the defense of any claim defended by the indemnifying Party pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of the indemnified Party.
Limitation of Liabilities
THE LAWS OF CERTAIN JURISDICTIONS, INCLUDING QUEBEC, DO NOT ALLOW THE LIMITATION OF LIABILITY OR CERTAIN DAMAGES IN CERTAIN CIRCUMSTANCES. IF THESE LAWS APPLY YOU, SOME OR ALL OF THE BELOW LIMITATIONS MAY NOT APPLY AND YOU MAY HAVE ADDITIONAL RIGHTS.
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
- AMOUNT. SUBJECT TO SECTION 10(c), IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE Go Evo SERVICES IN THE PRIOR 12-MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL Go Evo’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
- TYPE. SUBJECT TO SECTION 10(c), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
- Sections 10(a) will not apply to limit either Party’s liability or obligations under Section 9(c) (Indemnities) or either Party’s liability for gross negligence or wilful misconduct.
Term and Termination
- Term. This Agreement will commence on the Effective Date and continue to be in effect for the initial term set out in the Order Form (the “Term”). Unless otherwise set out in the Order Form, the Term will automatically renew for successive one-year terms unless either Party provides the other Party with written notice of its intention not to renew not less than [30] days prior to the end of the then-current Term.
- Termination for Convenience. Either Party may terminate this Agreement at any time by providing advance written notice of not less than 30 days to the other Party.
- Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 15 days after receipt of notice of such breach to correct such material breach.
- Transition Services. Upon termination of this Agreement, Customer will no longer have rights to access or use the Go Evo SaaS Services. Within 30 days following termination, Go Evo will, at Customer’s option, return to Customer or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Go Evo to provide the Go Evo SaaS Services. In addition, Go Evo will perform additional transition services that are mutually agreed upon by Go Evo and Customer in a statement of work that is added to an Order Form.
- Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer; Indemnity), Section 10 (Limitation of Liabilities), Section 11(d) (Survival), and Section 12 (General Provisions).
General Provisions
- Notices sent to either Party will be effective when delivered in person or by email, one day after being sent by overnight courier, or five days after being sent by first-class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be in writing and sent: (i) if to Go Evo, to the following address:
P.O. Box 417, Station C
Toronto, ON M6J 3P5
Email: legal@Go-Evo.com
and (ii) if to Customer, to the current postal or email address that Go Evo has on file with respect to Customer. Go Evo may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Go Evo current at all times during the Term.
- Assignment. Subject to the following sentence, neither Party may assign this Agreement to any third party without the other Party’s prior written consent. Notwithstanding the foregoing, either Party may assign its rights or obligations under this Agreement, in whole or in part, without the other Party’s consent, in connection with the transfer or sale of all or substantially all of the Party’s business or assets to a third party, whether by merger, sale of stock, sale or donation of assets or otherwise. Any assignment in violation of this Section will be void. This Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors, and permitted assignees.
- Choice of Law. This Agreement and any action related thereto will be governed by and construed in accordance with the substantive laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. This choice of jurisdiction does not prevent either Party from seeking injunctive relief with respect to a violation of intellectual property rights or confidentiality obligations in any appropriate jurisdiction.
- Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Go Evo in this Agreement means the right of Go Evo to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
- Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond the Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, or other labour problems (other than those involving a Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third-party websites.
- Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
- A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
- Independent Contractors. Go Evo’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee, or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
- Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations, or other communications, whether written or oral.
- No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby.
- English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.