This Customer Agreement (the “Agreement”) sets forth the terms and conditions between Altus Group Limited ("Altus Group") and the Customer (defined below) with respect to Altus Group’s provision of, and Customer’s access and use of, Altus Group’s Products (defined below) pursuant to a quote, order form, online shopping cart, invoice, renewal notice, statement of work, or other ordering document that references this Agreement (each, an “Order”). In this Agreement, “Products” means Altus Group’s products and services, including the data and information contained in or otherwise made available by such products and services.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE, EXECUTING OR COMPLETING AN ORDER, USING (OR MAKING ANY PAYMENT FOR) ANY PRODUCTS, OR OTHERWISE AFFIRMATIVELY INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU: (A) AGREE TO THIS AGREEMENT ON BEHALF OF YOURSELF, THE ORGANIZATION, COMPANY, OR OTHER LEGAL ENTITY FOR WHICH YOU ACT (THE “CUSTOMER”); AND (B) REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE CUSTOMER TO THIS AGREEMENT. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT ACCESS OR USE ANY PRODUCTS.
1. GRANT OF LICENSE
Altus Group hereby grants to the Customer a personal, revocable, non-transferable, non-sublicensable and non-exclusive license to use and access the Products, in accordance with the terms and conditions set out in this Agreement (the “License”). The License granted hereunder to the Customer is exclusively for the Customer’s internal use and without in any way limiting the foregoing, the Customer may not, in any manner whatsoever, whether in whole or in part, reproduce, modify, create derivative works, distribute, sublicense, transfer, or otherwise permit the use or access by any other person or entity of the Products (including the data and information therein). Any act contrary to the License, or any other provision of this Agreement having the result of unauthorized distribution of or access to the Products, may be considered a material breach by Customer of this Agreement and Altus Group may, at its sole discretion, terminate this Agreement and the License
2. ACCESS
The Customer may only access the Products in compliance with this Agreement. If limits to the number of authorized users and other access restrictions apply to the Products, Customer shall only permit the number of users permitted in this Agreement to access the Products and the Customer is responsible for security of any user ID file provided by Altus Group and any account login credentials (including passwords).
3. TITLE TO INFORMATION
The Customer acknowledges that, subject to the limited rights and license granted to the Customer under this Agreement and the rights of Altus Group’s third-party licensors as applicable, Altus Group retains and owns all right, title and interest in and to the Products, including all patent, copyright, trade secret and other intellectual property rights therein, including all modifications, enhancements, corrections, updates, additions and new versions. Altus Group reserves all rights not expressly granted to Customer in this Agreement.
4. COPYRIGHT AND TRADEMARK
The underlying rights to the Products belong to Altus Group and/or its third-party licensors as applicable, and are protected by copyright. The trademark “Altus Group”, among others, are owned by Altus Group or one of its affiliates. No license is granted to the Customer for use of any trademarks of Altus Group or its affiliates.
5. FEES
In consideration of the License granted by Altus Group hereunder, the Customer shall pay Altus Group the fees set forth in the Order (the “Fees”) and all applicable federal and provincial taxes. Unless otherwise specified in such Order, Customer shall pay the Fees for the Initial Term at the time of the Order. Fees payable for each Renewal Term shall be based on the then-current rates for the applicable Products and shall be due within 30 days of the date of an invoice issued by Altus Group to Customer for such Renewal Term. Any amount not paid when due will be subject to finance charges equal to.5% of the unpaid balance per month or the highest rate permitted by applicable law, whichever is less, determined and compounded daily from the date due until the date paid. Customer will reimburse any costs or expenses (including, but not limited to, reasonable attorneys’ fees) incurred by Altus Group to collect any amount that is not paid when due. Amounts due from Customer under this Agreement may not be withheld or offset by Customer against amounts due to Altus Group for any reason.
6. MISUSE OF DATA
Altus Group reserves the right to terminate this Agreement in the event of any breach of the License granted hereunder, misuse of the Products or of the retrieval system by the Customer, or for any other breach of this Agreement or other written agreement between the parties hereto.
7. INDEMNIFICATION
The Customer agrees to indemnify, defend and hold harmless Altus Group, its affiliates, and their respective officers, directors, employees, agents, successors and assigns from and against all third-party claims, suits, actions, demands and proceedings, and related costs, liabilities, judgments, damages, losses and expenses (including reasonable attorney fees) resulting from, related to or arising out of: (a) Customer’s access, use or disclosure of the Products; or (b) Customer’s breach of this Agreement or violation of applicable law.
8. TERM AND RENEWAL
The term of this Agreement shall commence as of the date of the Order for one (1) year, or the time period specified in the Order (the “Initial Term”). Unless specified in the Order otherwise, the term of this Agreement shall automatically renew for additional (1) year terms (each a “Renewal Term”, and together with the Initial Term, the “Term”) unless either party notifies the other party with written notice of cancellation at least sixty (60) days before the expiration of the then-current Term. Upon termination or expiration of this Agreement, the Customer must return or destroy all copies of the Products (including any copies of the data and information provided by the Products) retained by Customer. This Agreement may be terminated by the Customer only at the end of the then current Term. Any portions of the Products received from and stored on the Customer's computer must be deleted immediately upon termination or expiration of this Agreement. The License granted hereunder will terminate automatically if the Customer fails to comply with any of the terms or conditions of this Agreement. In the event that the Customer seeks early termination of this Agreement, the balance of any remaining Fees through to the end of the then current Term shall be immediately payable to Altus Group, in full with no further reductions, concessions or rebates, and no prepayments of the Fees shall be refunded.
9. DISCLAIMER
The Customer acknowledges and agrees that there may be delays, omissions or inaccuracies in the Products. Altus Group and its affiliates, agents, licensees, distributors and licensors and their employees cannot and do not represent or warrant, and to the maximum extent permitted by law hereby disclaim all representations and warranties whether express, implied or statutory including, the accuracy, completeness, merchantability, currency, non-infringement, or fitness for a particular purpose or freedom from libelous content of the Products. Altus Group shall not be liable to the Customer or any other party for any loss or injury caused in whole or part by the negligence of, or contingencies beyond the control of, Altus Group, in procuring, compiling, interpreting, editing, writing, reporting or delivering any Products. In no event will Altus Group be liable to the Customer or any other party (whether in contract, tort or otherwise) for any information and applications or for any indirect, consequential, special, punitive or similar damages, including loss profits, even if advised of the possibility of such damages. Altus Group’s total aggregate liability relating to this Agreement and the Products shall be limited to the total amount of Fees paid by Customer under this Agreement during the 12-month period immediately preceding the date such claim arose.
10. CONFIDENTIALITY
The Customer shall maintain the Products and all other confidential technical related information licensed and provided by Altus Group to the Customer under this Agreement (collectively, the “Confidential Information”) in confidence, and shall use such Confidential Information only for the purposes permitted under this Agreement.
The Customer acknowledges and agrees that disclosure of the Confidential Information (even inadvertent disclosure) may cause irreparable damage to Altus Group and its business prospects. Accordingly, the Customer agrees:
a. it shall maintain the absolute confidentiality of the Confidential Information and will not disclose the Confidential Information or any part of it for any reason whatsoever without the prior written consent of Altus Group, except to an employee, officer or director of the Customer and only to the extent necessary for such specific purpose for which the Confidential Information is disclosed by Altus Group to the Customer, and provided that all such individuals have been advised of the confidential and proprietary nature of the Confidential Information and agree to maintain such confidentiality; and
b. if any employee, officer or director of the Customer breaches any provision of this Agreement or if any third party obtains the Confidential Information through the Customer without Altus Group’s authorization then the Customer shall, at its own expense, take all actions that may be required to remedy such violation or recover such Confidential Information and prevent the use or dissemination of the Confidential Information, including, but not limited to, legal actions for seizure and injunctive relief, if then available. If in the opinion of Altus Group, the Customer fails to take such actions in a timely and adequate manner, Altus Group may, at the expense of the Customer, take such actions in its own name.
The obligations of this subsection shall not extend to any of the Confidential Information that: (a) is in the public domain other than by breach of this Agreement by the Customer or any other written agreement between the parties; and (b) is, at the date of disclosure to the Customer, properly in the possession of the Customer (in written form) on a non-confidential basis from sources other than Altus Group.
The obligations with respect to Confidential Information shall survive the expiration or termination of this Agreement for any reason whatsoever.
11. NON-COMPETE
The Customer hereby covenants and agrees, on its own behalf, and on behalf of any corporate body, firm, association or partnership which is a subsidiary of the Customer, or with which the Customer is not dealing at arms’ length, that it will not, at any time during the period commencing the date hereof and ending on the date twenty-four (24) months following the termination or expiry of this Agreement, either individually or in partnership or jointly or in conjunction with any person or persons, firm, association, syndicate, or company, as principal, agent, trustee, shareholder, employee or consultant, or in any other manner whatsoever, whether directly or indirectly, carry on or be engaged in or advise, lend money to, guarantee the debts or obligations of, any person or persons, firm, association, syndicate, or company engaged in or concerned with or interested in any business substantially similar to research, development and/or provision of the Products to third parties.
12. ASSIGNMENT
This Agreement may not be assigned and transferred by Customer without the prior written consent of Altus Group. Customer acknowledges and agrees that Altus Group shall be permitted to assign this Agreement without the consent of Customer to any of Altus Group’s affiliates or in connection with a sale or transfer, whether by way of sale, merger or change of control, of the business or substantially all the assets of the business of Altus Group to which the Products relate. Customer further acknowledges and agrees that this Agreement may be terminated by Altus Group in its sole and unfettered discretion in the event of any change of control of Customer.
13. ENTIRE AGREEMENT
This Agreement constitutes the entire Agreement and supersedes all prior understandings, agreements and negotiations between the parties with respect to the subject matter hereof. Modifications or amendments to this Agreement shall only be valid if completed in writing and signed by the Customer and Altus Group.
14. SEVERABILITY
If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, it shall be deemed excluded from this Agreement and of no force or effect, and the remaining provisions of this Agreement shall remain in full force and effect.
15. WAIVER
No waiver, whether by conduct or otherwise, of any of the provisions of this Agreement shall be deemed to constitute a waiver of any other provisions (whether or not similar) nor shall such waiver constitute a continuing waiver unless otherwise expressly provided in an instrument duly executed by the party to be bound thereby.
16. JURISDICTION AND LANGUAGE
This Agreement shall be governed by and interpreted and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.