TERMS OF SERVICE
Last Updated: January 18, 2019
IMPORTANT: Carefully read these Terms of Service
(this “Agreement”) before using the Service (as defined below).
This Agreement creates a binding legal agreement between you (“Customer”)
and OpenGuilds Inc. with a principal place of business at
725 Granville Street, Suite 400, Vancouver V7Y 1G5 (“OpenGuilds”).
BY USING THE SERVICE, YOU IRREVOCABLY ACCEPT THE TERMS AND CONDITIONS
OF THIS AGREEMENT.
You also agree to ensure that anyone who uses the Service using your password
or login information abides by this Agreement.
IF YOU ARE ENTERING THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY,
YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT,
IN WHICH CASE, THE TERM “CUSTOMER” WILL REFER TO SUCH ENTITY.
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 USE THE SERVICE.
By accepting this Agreement, you agree to be bound by the terms and conditions
from time to time by accessing the Service. Your continued use of the Service
will be deemed irrevocable acceptance of any such revisions.
Before you continue, you should print or save a local copy of this Agreement
In order to enter into this Agreement, you must have reached the legal age of
majority in your jurisdiction of residence, and by fully able and competent to
enter into the terms, conditions, obligations, affirmations, representation and
warranties set forth in this Agreement, and to abide by and comply with this
Agreement. It is your responsibility to ensure that you are legally eligible to
enter into this Agreement under any laws applicable to you.
If you accept this Agreement, you represent that you have the capacity to be
bound by it.
As used in this Agreement:
“Confidential Information” means all information regarding OpenGuilds’ business,
including, without limitation, technical, marketing, financial, employee,
planning and other confidential or proprietary information, disclosed under this
Agreement, that is clearly identified as confidential or proprietary at the time
of disclosure or that Customer knew or should have known, under the circumstances,
was considered confidential or proprietary. Confidential Information includes
information derived from or concerning the Service, the System or the
Documentation and the terms of this Agreement.
“Customer Data” means any data, information or information contained in any
database, template or other similar document submitted by Customer through the
Service or provided by Customer to OpenGuilds as part of the Service.
“Documentation” means the designated final user manuals, handbooks,
online materials, specifications or forms furnished by OpenGuilds that describe
the features, functionality or operation of the System.
“Fees” is defined in Section 4.
“Order Form” means collectively the order documents representing the initial
subscription to the Service (and any subsequent modifications to the
subscription agreed to between the parties in writing from time to time) that,
upon execution, are incorporated in and made a part of this Agreement from time to time.
“Service” means the on-line service delivered by OpenGuilds to Customer using
the System, as made available by OpenGuilds from time-to-time as specified
in the Order Form.
“System” means the technology, including hardware and software, used by
OpenGuilds to deliver the Service to Customer in accordance with this Agreement.
“UserID” is defined in Section 3.1.
“Users” means Customer’s employees, representatives, consultants,
contractors or agents who are authorized to use the Service on behalf of
Customer and have been supplied user identifications and passwords for this purpose.
Subscription to the Service.
Conditional on Customer:
(a) complying with the provisions of this Agreement,
including but not limited to paying the Fees as required by this Agreement; and
(b) cooperating with the reasonable requests of OpenGuilds,
OpenGuilds hereby grants to Customer a non-sublicensable, non-transferable,
non-exclusive subscription to access and use the Service in accordance with
this Agreement solely for
Customer’s internal business purposes and not for resale or to provide services
to third parties. Customer may order the Service under this Agreement by placing
written, signed orders on an Order Form. Only the execution of an Order Form by
Customer and by OpenGuilds constitutes a binding contract between those parties.
Customer agrees that its purchase of the subscription is neither contingent upon
the delivery of any future functionality or features nor dependent upon any oral
or written public comments made by OpenGuilds with respect to future functionality
Subject to the terms of this Agreement, including, without limitation, the payment
of the Fees set forth in Section 4 hereof, OpenGuilds shall
use commercially reasonable efforts to correct any reproducible failure of the
Service to substantially conform to its expected operation, provided that
OpenGuilds will not have an obligation to provide a correction for all such nonconformities.
Internet Security Disclaimer.
Customer acknowledges and agrees that OpenGuilds exercises no control over, and
accepts no responsibility for, any content passing through the Internet or for
Internet connectivity outside of OpenGuilds’ control. Customer acknowledges that
the Internet is inherently risky despite reasonable measures being taken, and
Customer assumes responsibility for its use of the Service over the Internet.
Limitation, Suspension or Termination of Access.
In addition to other rights and remedies of OpenGuilds under this Agreement,
OpenGuilds may suspend, terminate or limit (in OpenGuilds’ sole discretion)
Customer’s access to or use of the Service, or any part of it, without notice in
- (a) prevent damage to, or degradation of the integrity of the System or
any of Customer’s systems;
(b) comply with any law, regulation, court order or
other governmental request or order; or
(c) otherwise protect OpenGuilds from harm
to its reputation or business.
OpenGuilds will use commercially reasonable efforts
to notify Customer of a limitation, suspension or termination action as soon as
reasonably practicable. In the event of a limitation or suspension, OpenGuilds will
restore Customer’s access to the Service when OpenGuilds determines the event has
been resolved. Nothing in this Agreement will limit OpenGuilds’ right to take
any action or invoke remedies, or will act as a waiver of OpenGuilds’ rights in
any way with respect to any of the foregoing activities. OpenGuilds will not be
responsible for any loss or damages of any kind incurred by Customer as a result
of any limitation, termination or suspension of the Service under this Section
CUSTOMER’S USE OF THE SERVICE.
Access and Security Guidelines.
Subject to any limitations associated with Customer’s subscription account,
Customer may set up User accounts by supplying a unique user identification name
and password (“UserID”) to OpenGuilds for each User. Users may only access and
use the Service with the specific UserID. Customer is responsible to ensure
UserIDs are not shared, and that Users retain the confidentiality of their
UserIDs. Customer is responsible for any and all activity occurring under the
UserIDs associated with Users. Customer will promptly notify OpenGuilds of any
actual or suspected unauthorized use of the Service. OpenGuilds may require that
a UserID be replaced at any time.
Customer Responsibilities and Restrictions.
Customer will, at all times, comply with all applicable local, state, federal
and foreign laws in using the Service. Without limiting the generality of
Section 3.1, Customer agrees that Customer
will not, and will not permit any person, including without limitation the Users, to:
- use the Service other than as permitted by this Agreement;
use the Service to violate, infringe or appropriate any person’s privacy
rights, publicity rights, defamation rights, intellectual property rights,
proprietary rights, contractual rights or any other legal right;
use the Service in a manner that is misleading, deceptive or fraudulent or
otherwise illegal or promotes illegal activities, including engaging in phishing
or otherwise obtaining financial or other personal information in a misleading
manner or for fraudulent or misleading purposes;
use the Service in a manner that is libelous or defamatory, harmful to
minors in any way, or that is otherwise threatening, abusive, violent,
harassing, malicious or harmful to any person or entity, or is invasive of
use the Service in a manner that is hateful or discriminatory based on race,
colour, sex, religion, nationality, ethnic or national origin, marital status,
disability, sexual orientation or age or is otherwise objectionable, as
reasonably determined by OpenGuilds;
use the Service to impersonate a OpenGuilds employee, or any other person, or
falsely state or otherwise misrepresent your affiliation with any person or entity;
if your subscription for or use of the Service involves the use of an account
for any third party site or service (each, a “Third Party Account”), directly
or indirectly use such Third Party Account in a manner that is in contravention
sublicense or transfer any of Customer’s rights under this Agreement, except
as otherwise provided in this Agreement, or otherwise use the Service for
the benefit of a third party or to operate a service bureau;
copy, modify, alter, change, translate, decrypt, obtain or extract the source
code of, create derivative works from, reverse engineer, reverse assemble,
decompile, disassemble or reverse compile any part of the Service;
use or launch any automated system, including without limitation any “robot”
or “spider” that accesses the Service maliciously; or
interfere with, or attempt to interfere with, the Service, the System or any
other networks or services connected to the Service, whether through the use
of viruses, bots, worms or any other computer code, file or program that
interrupts, destroys or limits the functionality of any computer software or hardware.
Customer is solely responsible for the Customer Data and will not provide, post
or transmit any Customer Data or any other information, data or material that:
(a) infringes or violates any intellectual property rights, publicity/privacy
rights, law or regulation; or
(b) contains any viruses or programming routines intended to damage,
surreptitiously intercept or expropriate any system, data or personal
information. OpenGuilds may take remedial action if Customer Data
violates this Section 3.3, however,
OpenGuilds is under no obligation to review Customer Data for accuracy or potential
FEES, PAYMENT AND SUSPENSION.
As consideration for the subscription to the Service, Customer will pay
OpenGuilds the fees (“Fees”) set forth in and in accordance with the Order Form.
All Fees will be billed in advance on an annual basis and are due within thirty
(30) days of receipt of invoice, unless otherwise agreed to in the Order Form.
Overdue amounts shall accrue interest at the rate of 12% per annum, or at the
highest legal interest rate, if less. Customer shall reimburse OpenGuilds for
all expenses (including reasonable attorneys’ fees) incurred by OpenGuilds to
collect any amount that is not paid when due. All Fees owed by Customer in
connection with this Agreement are exclusive of, and Customer shall pay, all
sales, use, excise and other taxes that may be levied upon Customer in connection
with this Agreement, except for employment taxes and taxes based on OpenGuilds’
net income. OpenGuilds reserves the right (in addition to any other rights or
remedies OpenGuilds may have) to discontinue the Service and suspend all UserIDs
and Customer’s access to the Service if any Fees set forth in the Order Form are
more than thirty (30) days overdue until such amounts are paid in full.
Customer shall maintain complete, accurate and up-to-date Customer billing and
contact information at all times.
(a) to hold the Confidential Information in strict
(b) to limit access to the Confidential Information to those of its
employees or agents having a need to know and who are bound by confidentiality
obligations at least as restrictive as those contained herein, and
(c) not to use the Confidential Information for any purpose
except as expressly permitted hereunder.
Notwithstanding the foregoing, Customer will not be in violation of this Section
5.1 with regard to a disclosure that was in response to a
valid order or requirement by a court or other governmental body, provided that
Customer gives OpenGuilds prior written notice of such disclosure in order to permit
OpenGuilds to seek confidential treatment of such information.
The restrictions on use and disclosure of Confidential Information set forth
above will not apply to any Confidential Information, or portion thereof, which
(a) is or becomes a part of the public domain through no act or omission of Customer,
(b) was in Customer’s lawful possession prior to the disclosure, as shown by
Customer’s competent written records,
(c) is independently developed by Customer without reference to the Confidential
Information, as shown by Customer’s competent written records, or
(d) is lawfully disclosed to Customer by a third party without restriction on disclosure.
System and Technology.
Customer acknowledges that OpenGuilds retains all right, title and interest in
and to the System and all software, materials, formats, interfaces, information,
data, content and OpenGuilds proprietary information and technology used by OpenGuilds
or provided to Customer in connection with the Service (the “OpenGuilds Technology”),
and that the OpenGuilds Technology is protected by intellectual property rights owned
by or licensed to OpenGuilds. Other than as expressly set forth in this Agreement,
no license or other rights in the OpenGuilds Technology are granted to the Customer,
and all such rights are hereby expressly reserved by OpenGuilds. OpenGuilds shall
have a royalty-free, worldwide, transferable, sublicenseable, irrevocable,
perpetual license to use or incorporate into the Service any suggestions,
enhancement requests, recommendations or other feedback provided by Customer,
including Users, relating to the Service.
Customer retains all right, title and interest in and to the Customer Data.
OpenGuilds will only use Customer Data to provide the Service under this Agreement.
Customer will be solely responsible for providing all Customer Data required for
the proper operation of the Service. Customer grants to OpenGuilds all necessary
licenses in and to such Customer Data solely as necessary for OpenGuilds to provide
the Service to Customer. OpenGuilds will not knowingly use or access any Customer
Data unless authorized to do so by Customer and, in such circumstances, OpenGuilds
will access and use such Customer Data only as required to perform requested
services on behalf of Customer.
TERM AND TERMINATION.
The term of this Agreement will commence on the Effective Date and will continue
indefinitely, unless otherwise agreed to in the Order Form, until terminated by
either party as set forth in this Section 7.
Termination for Convenience.
Either party may terminate this Agreement for any reason by giving the other
party at least [thirty (30) days’] prior written notice.
Termination for Default.
Either party may terminate this Agreement upon written notice if the other party
materially breaches this Agreement and does not cure such breach (if curable)
within [thirty (30) days] after written notice of such breach.
Effect of Termination.
Upon the termination of this Agreement for any reason,
(a) any amounts owed to OpenGuilds under this Agreement before such termination
will become immediately due and payable; and
(b) Customer will return to OpenGuilds all property (including any
Confidential Information) of OpenGuilds in its possession or control.
OpenGuilds agrees that upon any early termination of this Agreement, OpenGuilds will
allow the Customer to access, without the right to modify, enhance or add to,
the Customer Data (either through on-line access or an off-line mechanism provided
by OpenGuilds) for up to 45 days after termination. Thereafter, OpenGuilds will remove
all Customer Data from the System and all Customer access to or use of the System
and Service will be immediately suspended. The rights and duties of the parties
under Sections 4 through 6, this Section 7.4 and Sections 8 through 11 will
survive the termination or expiration of this Agreement.
DISCLAIMER OF WARRANTIES.
THE SERVICE AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OPENGUILDS TO CUSTOMER
ARE PROVIDED “AS IS”, “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT ANY WARRANTIES,
REPRESENTATIONS OR CONDITIONS OF ANY KIND. OPENGUILDS HEREBY DISCLAIMS ALL EXPRESS,
IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS OR CONDITIONS, WHETHER
WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE,
NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY,
QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE. OPENGUILDS DOES NOT WARRANT
THAT THE SERVICE WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. WITHOUT LIMITING
THE GENERALITY OF ANY OF THE FOREGOING, OPENGUILDS EXPRESSLY DISCLAIMS ANY REPRESENTATION
OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH
CUSTOMER’S USE OF THE SERVICE (INCLUDING ALERTS AND RECOMMENDATIONS) IS ACCURATE,
OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
OPENGUILDS IS NOT RESPONSIBLE FOR THE ACTS OR OMISSIONS OF, OR FOR THE FAILINGS OF,
ANY THIRD PARTY PROVIDER OF ANY SERVICE, NETWORK, SOFTWARE OR HARDWARE, INCLUDING
BUT NOT LIMITED TO CROWDWORKER PLATFORMS, INTERNET SERVICE PROVIDERS, HOSTING
SERVICES UTILIZED BY OPENGUILDS, TELECOMMUNICATIONS PROVIDERS, OR ANY SOFTWARE OR
HARDWARE NOT PROVIDED BY OPENGUILDS.
THE SERVICES ARE OFFERED AND CONTROLLED BY OPENGUILDS FROM ITS FACILITIES IN CANADA.
OPENGUILDS MAKES NO REPRESENTATIONS THAT THE SERVICES ARE APPROPRIATE OR AVAILABLE
FOR USE IN OTHER LOCATIONS. THOSE WHO ACCESS OR USE THE SERVICE FROM OTHER
JURISDICTIONS DO SO AT THEIR OWN VOLITION ARE RESPONSIBLE FOR COMPLIANCE WITH LOCAL LAW.
Customer agrees to indemnify, defend and hold harmless OpenGuilds and its affiliates,
and each of their respective officers, directors, agents, shareholders, employees
and representatives (collectively, the “Indemnified Parties”), from and against
any third party claim, demand, loss, damage, cost or liability
(including reasonable attorneys’ fees) (collectively and individually, “Claims”)
incurred by or made against the Indemnified Parties in connection with any Claims
arising out of or relating to this Agreement or the Service, including without
limitation in relation to:
- (a) Customer’s use, non-use or misuse of the Service;
- (b) Customer’s violation or alleged violation of this Agreement;
(c) Customer’s violation of any rights, including intellectual property rights,
of a third party and otherwise as set out herein; or
(d) an allegation that the Customer Data, or the use of Customer Data pursuant to this Agreement, infringes
the intellectual property rights or other rights of a third party or otherwise
causes harm to a third party.
OpenGuilds reserves the right, at Customer’s
expense, to assume the exclusive defense and control of any matter for which Customer
is required to indemnify OpenGuilds and Customer agrees to cooperate with OpenGuilds’
defense of these Claims. Customer agrees to not settle any matter without the
prior written consent of OpenGuilds. OpenGuilds will use reasonable efforts to
notify you of any such Claims upon becoming aware of them.
LIMITATION OF LIABILITY.
The following provisions have been negotiated by each party , are a fair
allocation of risk, are an essential basis of the bargain under this Agreement
and shall survive and continue in full force and effect despite any failure of
consideration or of an exclusive remedy:
OPENGUILDS’ TOTAL AGGREGATE LIABILITY FROM ANY AND ALL CLAIMS IN CONNECTION WITH
OR UNDER THIS AGREEMENT IS LIMITED TO THE LESSER OF: (A) [$100] (B) THE TOTAL
AMOUNT OF FEES RECEIVED BY OPENGUILDS UNDER THIS AGREEMENT IN THE [TWELVE MONTHS]
IMMEDIATELY PRECEDING THE DATE THE CAUSE OF ACTION FIRST AROSE. FOR GREATER
CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT
INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT SHALL OPENGUILDS’ SUPPLIERS
HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
IN NO EVENT SHALL OPENGUILDS BE LIABLE TO CUSTOMER FOR ANY
- (A) SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES,
- (B) LOST SAVINGS, PROFIT, DATA, USE OR GOODWILL,
- (C) BUSINESS INTERRUPTION, EVEN IF NOTIFIED IN ADVANCE OF SUCH POSSIBILITY, OR
- (D) 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, GROSS NEGLIGENCE, FUNDAMENTAL BREACH,
BREACH OF A FUNDAMENTAL TERM) OR OTHERWISE.
IN NO EVENT SHALL OPENGUILDS BE LIABLE FOR PROCUREMENT OR COSTS OF SUBSTITUTE
PRODUCTS OR SERVICES.
No Jury Trial.
CUSTOMER IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT CUSTOMER MAY HAVE TO A
TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT.
No Participating in Class Action.
CUSTOMER AGREES THAT, WITH RESPECT TO ANY DISPUTE ARISING OUT OF OR RELATING TO
THIS AGREEMENT, CUSTOMER HEREBY GIVES UP ITS RIGHT TO PARTICIPATE AS A MEMBER OF
A CLASS OF CLAIMANTS IN ANY LAWSUIT INCLUDING BUT NOT LIMITED TO CLASS ACTION
LAWSUITS INVOLVING ANY SUCH DISPUTE.
Limitation of Time.
Customer agrees that it will not bring a claim under or related to this Agreement
more than twelve (12) months from when such claim first arose.
OpenGuilds may make public announcements, including but not limited to, press
releases and media announcements, of the existence of this Agreement and the
relationship between the parties. Customer agrees to allow OpenGuilds to use
Customer’s name in customer lists and other promotional materials describing
Customer as a customer of OpenGuilds and user of the Service.
Customer may not assign this Agreement to a third party without OpenGuilds’ prior
written consent not to be unreasonably withheld, except to a third party that
controls, is controlled by or is under common control with Customer. OpenGuilds
may assign this Agreement or any rights hereunder to any third party without
Customer’s consent. Any assignment in violation of this Section 11.2 shall be
void. Any assignment is conditional upon the assignee agreeing
in writing to be bound to the terms of this Agreement which shall be binding upon
and inure to the benefit of the parties’ successors and permitted assignees.
Except for any dispute related to the intellectual property rights of a party,
any dispute or claim arising out of or relating to this Agreement will be
referred to and finally resolved arbitration administered by the British Columbia
International Commercial Arbitration Centre pursuant to its applicable Rules.
The place of arbitration shall be Vancouver, British Columbia, Canada. The
number of arbitrators shall be one (1).
Choice of Law.
This Agreement and any action related thereto shall be governed by and construed
in accordance with the laws of the Province of British Columbia and the federal
laws of Canada applicable therein, without regard to conflicts of law principles.
The U.N. Convention on Contracts for the International Sale of Goods will not
apply to this Agreement.
Any notice or other communication required or permitted under this Agreement and
intended to have legal effect must be given in writing: (i) to OpenGuilds, by
email at email@example.com or by certified mail at 860 Roche Point Drive, North Vancouver V7H2V1 or
(ii) to Customer, by email or by certified mail at the addresses set forth in the Order Form.
Notwithstanding the foregoing, each party may change its address from time to
time upon written notice to the other party of the new address.
Notices will be deemed to have been given upon receipt, or when delivery is refused.
This Agreement, including the Order Form, is the entire understanding and
agreement of the parties, and supersedes any and all previous and contemporaneous
understandings, agreements, proposals or representations, written or oral, between
the parties, as to the subject matter hereof. Only a writing signed by both
parties may modify it.
Severability and Waiver.
In the event that any provision of this Agreement is held to be invalid or
unenforceable, the valid or enforceable portion thereof and the remaining provisions
of this Agreement will remain in full force and effect. Any waiver or failure
to enforce any provision of this Agreement on one occasion will not be deemed a
waiver of any other provision or of such provision on any other occasion.
All waivers must be in writing. Other than as expressly stated herein, the
remedies provided herein are in addition to, and not exclusive of, any other
remedies of a party at law or in equity.
Relationship of the Parties.
The parties to this Agreement are independent contractors, and no agency,
partnership, franchise, joint venture or employee-employer relationship is
intended or created by this Agreement.