Service Level and Licensing Agreement

 THE FOLLOWING AGREEMENT CONTAINS IMPORTANT INFORMATION ABOUT YOUR RIGHTS AND OBLIGATIONS, AS WELL AS LIMITATIONS AND EXCLUSIONS THAT MAY APPLY TO YOU. THIS AGREEMENT CONTAINS A DISPUTE RESOLUTION CLAUSE. BY CLICKING ON THE “ACCEPT” BUTTON, YOU ARE CONSENTING TO BE BECOME A PARTY TO THIS AGREEMENT AND BOUND BY ALL OF ITS TERMS. IF YOU DO NOT AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, CLICK THE “DO NOT ACCEPT” BUTTON OR LEAVE THE WEBSITE.

 This Service Level and Licensing Agreement (the “Agreement”) is between Mar-Kov Computer Systems Inc., an Ontario corporation ( “Service Provider”) and the person who is subscribing to the Services and licensing the Software Client (“Customer”).  

 WHEREAS Service Provider has developed and owns software used to assist its customers with their manufacturing compliance obligations with respect to hazard labelling and safety data sheet, which is offered to Service Provider’s customers in the form of free or fee-based subscription-based services that are accessed online or through a software client installed on the customers' workstations and/or other devices;

 AND WHEREAS, Customer desires to subscribe for and use the services offered by Service Provider;

 NOW, THEREFORE, in consideration of the mutual covenants set forth below and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties agree as follows:

 

1.                 Definitions

 1.1.             “Agreement” has the meaning set forth in the preamble.

 1.2.             “Confidential Information” has the meaning set forth in Section 4.1.

 1.3.             “Customer” has the meaning set forth in the preamble.

 1.4.             “Customer Data” means the data and documents uploaded to the Services by a Service User and any data that is generated as a result of interaction by a Service User with the Services, including metadata, data tables and other data, all for the period they remain on the Services.

 1.5.             “Disclosing Party” has the meaning set forth in Section 4.1.

 1.6.             “Effective Date” means the date on which Customer first subscribes to the Service.

 1.7.             “Force Majeure Event” has the meaning set forth in Section 7.2.

 1.8.             “Intellectual Property” means all rights and interests in all (a) patents, utility models, patent applications, and continuing (continuation, divisional, or continuation-in-part) applications, re-issues, extensions, renewals, and re-examinations thereof and patents issued thereon; (b) registered and unregistered trademarks, service marks, trade names, domain names, and all of the associated goodwill; (c) registered and unregistered copyrights and all other literary and author’s rights; (d) trade secrets, know‑how, show-how, concepts, ideas, methods, processes, designs, discoveries, improvements, and inventions, whether patentable or unpatentable; (e) all other intellectual, industrial, and proprietary rights now or hereafter coming into existence throughout the world; (f) applications for and registrations, renewals, and extensions of any of the foregoing; and (g) exclusive and non-exclusive license rights to any of the foregoing. 

 1.9.             “Receiving Party” has the meaning set forth in Section 4.1.

 1.10.          “Service Provider” has the meaning set forth in the preamble.

 1.11.          “Software Client” means the executable computer program installed on the Service User's workstation or other device through which the Service User accesses and uses the Services.

 1.12.          “Service Commencement Date” has the meaning set forth in Section 5.1.

 1.13.          “Services” means the means the web-based or app-based hosted services provided by Service Provider, including the functionality set forth in a written purchase order accepted by Service Provider, or the functionality for the applicable Services tier set forth on the Website, or within the Software Client, as applicable.

 1.14.          “Service User” means each person, usually an employee of Customer, who Customer has authorized to use the Services subscribed to by Customer, except as otherwise limited by Customer through management of its account settings.

 1.15.          “Subscription Fees” means the fees for the applicable tier of Services.  The current Subscription Fees for the Term are set forth in a written purchase order accepted by Service Provider, on the Website, or within the Software Client, as applicable, and are subject to adjustment as set forth in Section 5.1.

 1.16.          “Term” has the meaning set forth in Section 3.1.

 1.17.          “Website” means www.Mar-Kov.com or www.ghsauth.com, as applicable, including all pages on such website, and any successor website designated by Service Provider.

 

2.                 Services and Software Client License

2.1.             Subject to the terms and conditions of this Agreement, and during the Term, Service Provider shall provide Customer with the tier of Services for which Customer has subscribed.  Customer shall be authorized to grant access to the Services to up to the number of Users for which Customer has subscribed.  At the sole discretion of Service Provider, the Services may be modified from time to time, and Service Provider may include additional features, updates and modifications as are reasonably likely to be generally perceived by subscribers to the Services as improving and building upon the Services.

2.2.             In connection with Customer's subscription to the Services, Service Provider grants Customer a revocable, non-exclusive license to use the Software Client solely to access and use the Services during the term of this Agreement. At the sole discretion of Service Provider, the Software Client may be updated from time to time, and Service Provider may include additional features and modifications as are reasonably likely to be generally perceived by subscribers to the Services as improving and building upon the Software Client.

2.3.             Customer shall, at its sole expense, provide, configure and be responsible for the proper functioning and currency of hardware, systems software, browser and other applications software for Customer’s workstations and other devices, as well as broadband Internet connectivity.

2.4.             Service Provider at all times is, and shall continue to be, the sole and exclusive owner of all Intellectual Property and other proprietary rights and interests in and to the Services and Software Client, including all software code and other functional components thereof.  This Agreement is not a royalty-bearing contract or sale and does not convey, and Customer acknowledges and agrees that Customer neither has nor at any time shall attempt to claim, any interest in and to any and all of the Services or any Intellectual Property related to any of the foregoing or the use thereof other than any access expressly granted in this Agreement.  Any access of Customer and the Service Users to software included or embedded in the Services shall be in object code form only on a limited, revocable, nonexclusive, nontransferable basis.

 2.5.             Customer shall not, and shall ensure that its Service Users do not, copy, modify, sublicense, distribute, assign, transfer, rent, lease, convey, pledge, hypothecate, encumber, translate, disassemble, modify, reverse engineer or decompile any portion of the Services, Software Client or other Intellectual Property included or embedded in Service Provider's technology, use the Services or Software Client to provide software services to third parties, including, without limitation, data processing, hosting, outsourcing, service bureaus or online application service (ASP) offerings.

 2.6.             The parties acknowledge and agree that, at all times, Service Provider is not and shall not be, the rightful owner or user of Customer Data and shall not use of Customer Data, except as expressly permitted by this Agreement, required by law, required to provide the Services or authorized by Customer.

3.                 Term and Termination

3.1.             The term of this Agreement shall commence on the Effective Date and shall continue until terminated by the parties in accordance with the provisions of this Agreement (the "Term"). At any time during the Term, either party may elect to terminate this Agreement by giving a minimum of thirty (30) days' prior written notice to the other party of the election to terminate; provided, however, if this Agreement is terminated by Customer, Customer acknowledges that any prepaid Subscription Fees will be non-refundable. For greater clarity, if a Customer ceases to pay Subscription Fees when due and Service Provider continues to offer a free subscription tier, this Agreement will not be terminated automatically, but Customer's subscription to the Services will be immediately downgraded to the free subscription tier. If a Customer ceases to pay Subscription Fees when due and Service Provider does not at that time offer a free subscription tier, this Agreement will immediately terminate.

3.2.             Service Provider shall, following receipt of a written request from Customer, transfer to Customer (or its designee) an electronic copy of all Customer Data in its possession within sixty (60) days after receipt of such written notice.  Customer acknowledges that Customer Data may be in a machine-readable or database format that requires applicable knowledge and expertise to access and use, and assumes all responsibility for accessing and using the transferred Customer Data, including but not limited to retaining, at its own expense, a third party with the required knowledge and expertise. Any written request to transfer Customer Data must be received by Service Provider no later than the business day immediately prior to the one year anniversary of the termination of this Agreement.

3.3.             One year after termination of this Agreement, unless prohibited by law or court order, Service Provider may delete all Customer Data in its possession without retaining any copies thereof, except as may be required by law or order of a governmental authority. At any time following receipt of a written request from Customer, Service Provider shall, within a commercially reasonable period, delete all Customer Data in its possession without retaining any copies thereof, except as may be required by law or order of a governmental authority.

4.                 Confidentiality

4.1.             Pursuant to this Agreement, each party (“Receiving Party”) may, from time to time, learn, receive, hold, or have access to (in written, oral or electronic form)  Confidential Information from the other party (“Disclosing Party”).  “Confidential Information” means any information, technical data, or know-how, whether or not a statutory “trade secret” of the Disclosing Party, including, but not limited to, that which relates to research, product plans, Intellectual Property, products, services, customers, employees, documents, markets, software, developments, inventions, processes, designs, drawings, engineering, hardware configuration information, marketing or finances of the Disclosing Party. Confidential Information shall include, without limitation, the terms and conditions of this Agreement and all Customer Data. The foregoing notwithstanding, Confidential Information shall not include any information which: (i) is already known by means not subject to a confidentiality obligation of the Receiving Party at the time disclosed by the Disclosing Party; (ii) is or becomes available through public sources apart from any unauthorized disclosure by the Receiving Party; or (iii) is obtained by the Receiving Party from a third party who has the right to disclose the same.

4.2.             During the Term and for a period of one year thereafter, the Receiving Party shall protect any Confidential Information received from the Disclosing Party: (i) by limiting use and disclosure of the same to its employees, and/or authorized agents or independent contractors to the extent necessary for them to perform the Receiving Party’s obligations in this Agreement; and (ii) by exercising reasonable care to prevent unauthorized use or disclosure, which shall in no event be less than the same degree of care it uses to protect its own information of like importance from unauthorized use or disclosure.

4.3.             Notwithstanding the foregoing, either party may disclose Confidential Information received hereunder:  (i) pursuant to a mandatory discovery request, subpoena, court order or other order of a court, tribunal or government agency received by a party, in each case, only after the party receiving same has given prompt written notice thereof to the Disclosing Party; or (ii) to the Receiving Party’s own legal counsel or independent accountant who have a need to know such Confidential Information. In the case of (i) of this paragraph, the Receiving Party shall (a) consult with the Disclosing Party prior to the disclosure of any Confidential Information, and (b) cooperate in good faith with the Disclosing Party, at the Disclosing Party’s expense and in the Disclosing Party's discretion, with any reasonable effort to resist the production of Confidential Information, including obtaining a protective order or defending a motion to compel the production of Confidential Information.

4.4.             Without limiting the generality of Section 4.2, Service Provider shall not use, disclose or access Customer Data except as authorized by Customer or a Service User with access to Customer Data, as may be required to support the Services, to comply with applicable law, or as permitted by Section 4.3(i) or (ii).  Customer shall cause its Service Users to provide Customer Data access to Service Provider personnel and third parties only on an as needed basis and to terminate such access promptly after the need for such access has terminated.  In the performance of all support of the Services where file sharing is used, it is the sole and exclusive responsibility of the Service Users to ensure that any and all sharing sessions are terminated.

5.                 Fees and Payment

5.1.             Customer shall be obligated to pay (except in the case of any free subscription tier that may be offered by Service Provider, in its sole discretion) the Subscription Fees applicable to the subscription tier for which it has subscribed as set forth in a written purchase order accepted by Service Provider, on the Website, or within the Software Client, as applicable.  SERVICE PROVIDER HAS THE RIGHT, UPON THIRTY (30) DAYS' PRIOR WRITTEN NOTICE TO CUSTOMER, TO ADJUST THE SUBSCRIPTION FEES AND OTHER FEES OR PRICES APPLICABLE TO NEW AND RENEWAL SUBSCRIPTIONS TO THE SERVICES. Service Provider is under no obligation to offer a free subscription tier, and may cancel any free subscription tier at any time, in its sole discretion.

5.2.             Unless otherwise set forth in a written purchase order accepted by Service Provider, the Subscription Fees for the subscription period and subscription tier for which Customer has subscribed through the Website or within the Software Client, as applicable, are due and payable in advance. Payment shall be made in immediately available funds through any of the payment methods made available by Service Provider through the Website or within the Software Client, as applicable. Customer is responsible for timely renewal of its subscription for the applicable subscription tier and payment of the applicable Subscription Fees, and failure by Customer to pay Subscription Fees when due shall be dealt with as described in Section 3.1 of this Agreement.

5.3.             Customer shall pay any and all taxes except those based on Service Provider’s income (including but not limited to sales and/or use taxes, value added taxes, and stamp taxes), fees, tariffs, duties, or other similar levies imposed by any government, governmental unit or similar authority with respect to the fees made or payments received in connection with the Services and any other services.  All payments shall be made free and clear without deduction for any and all present and future taxes imposed by any taxing authority.

6.                 Mutual Indemnities

6.1.             Service Provider shall indemnify, defend and hold Customer harmless from and against any and all third party claims, losses, damages, suits, fees, judgments, costs and expenses which arise out of or relate to a claim brought or sanction sought arising from allegations by any third party alleging that the Services or other services provided by Service Provider hereunder in accordance with this Agreement infringe any Intellectual Property right of such third party (a "Claim Against Customer"); provided that Customer (i) gives Service Provider prompt written notice of the claims against Customer, (ii) give Service Provider sole control of the defense and settlement of the Claim Against Customer (except that Service Provider may not settle any Claim Against Customer unless such settlement includes an unconditional release of Customer of all liability under such Claim Against Customer), and (iii) give Service Provider all reasonable assistance in the defense of such Claim Against Customer, at Service Provider's expense. If Service Provider receives information an infringement claim related to the Services, Software Client, or other services provided by Service Provider hereunder, Service Provider may in its sole discretion and at no additional cost to Customer (a) modify the Services, Software Client, or other services provided by Service Provider hereunder so that they are no longer claimed to infringe, (b) obtain a license for Customer's continued use of the Services, Software Client, or other services provided by Service Provider hereunder in accordance with this Agreement, or (c) terminate Customer's subscription for the Services, Software Client, or other services provided by Service Provider hereunder upon 30 days’ written notice and refund Customer any prepaid fees covering the remainder of the term of the terminated subscriptions. The above defense and indemnification obligations do not apply to the extent a Claim Against Customer arises from Customer Data, Customer use of the Services, Software Client, or other services provided by Service Provider hereunder in violation of this Agreement, or Customer's obligations under applicable law.

6.2.             Customer shall indemnify, defend and hold Service Provider harmless from and against any and all third party claims, losses, damages, suits, fees, judgments, costs and expenses which arise out of or relate to a claim brought or sanction sought arising from allegations by any third party or governmental authority (i) alleging that any of Customer Data infringes such third party’s intellectual property rights, (ii) arising from Customer's use of the Services, Software Client, or other services provided by Service Provider hereunder, or (iii) arising from Customer's violation of applicable law or inaccuracy or misuse of Safety Data Sheets generated through use of the Services and Software Client (each a “Claim Against Service Provider”); provided that Service Provider (a) promptly gives Customer written notice of the Claim Against Service Provider, (b) gives Customer sole control of the defense and settlement of the Claim Against Service Provider (except that Customer may not settle any Claim Against Service Provider unless such settlement includes an unconditional release of Service Provider of all liability under such Claim Against Service Provider), and (c) gives Customer all reasonable assistance, at Customer's expense.

6.3.             This Section 6 states the indemnifying party’s sole liability to, and the indemnified party’s exclusive remedy against, the other party for any type of claim described in this Section 6.

7.                 Warranties and Representations

7.1.             SERVICE PROVIDER DISCLAIMS ALL WARRANTIES, ORAL OR WRITTEN, EXPRESS OR IMPLIED, INCLUDING AND WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW. SERVICES AND SOFTWARE CLIENT ARE PROVIDED "AS IS" EXCLUSIVE OF ANY WARRANTY WHATSOEVER. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT HAS NOT ENTERED INTO THIS AGREEMENT ON THE BASIS OF ANY REPRESENTATIONS OR PROMISES NOT EXPRESSLY CONTAINED HEREIN. CUSTOMER ACKNOWLEDGES AND AGREES THAT IT IS SOLELY RESPONSIBLE FOR THE ACCURACY AND USE OF SAFETY DATA SHEETS GENERATED THROUGH USE OF THE SERVICES AND SOFTWARE CLIENT.

8.                 Limitation of Liability

8.1.             LIABILITY ARISING UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT, OBJECTIVELY MEASURABLE DAMAGES AND SERVICE PROVIDER SHALL NOT BE LIABLE TO CUSTOMER FOR LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF USE OR OF DATA, INTERRUPTION OF BUSINESS, PERSONAL INJURY, DEATH OR FOR INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES INCURRED BY A PARTY, EVEN IF SERVICE PROVIDER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  NOTWITHSTANDING ANYTHING IN THIS AGREEMENT TO THE CONTRARY, SERVICE PROVIDER’S ENTIRE LIABILITY FOR ANY BREACH OF, OR OTHERWISE IN ANY WAY RELATED TO THE SUBJECT MATTER OF, THIS AGREEMENT, AND REGARDLESS OF WHETHER THE CLAIM FOR SUCH DAMAGES IS BASED IN CONTRACT OR IN TORT OR ANOTHER THEORY, SHALL NOT EXCEED THE TOTAL AMOUNTS ACTUALLY PAID TO SERVICE PROVIDER (EXCLUSIVE OF TAXES) IN THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM OR CLAIMS. 

8.2.             All other terms of this Agreement notwithstanding, Service Provider shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any contingency beyond the reasonable control of Service Provider (a “Force Majeure Event”), including but not limited to, fire, flood, strike, power outage lasting more than three days, widespread Internet outage, industrial disturbance, denial of service attack, war, riot, insurrection, acts of God, acts of civil or military authority.  In the event of such a Force Majeure Event, time for delivery or other performance under this Agreement shall be as soon as practicable following such Force Majeure Event.

9.                 General

9.1.             Relationship of the Parties.  The parties are independent contractors, and neither shall at any time be considered, or represent itself to be, an agent, employee, associate, or joint venture party of the other.  Neither party shall have the authority nor hold itself out as able to bind the other party to any contract or commitment, nor shall either party be responsible for the acts or omissions of the other vis-a-vis third parties.

9.2.             Notices.  All notices, demands, or other communications required or desired to be given hereunder by any party shall be in writing and shall be sent by registered or certified mail, postage prepaid, return receipt requested, or by confirmed fax or e-mail with delivery receipt, at the respective addresses we provide to each other or specify from time to time, or may be delivered and acknowledged by Customer through the Website or Software Client. Service Provider's address is as follows:

Mar-Kov Computer Systems Inc.

130 Bridgeland Avenue, Suite 111

Toronto, ONM6A 1Z4

Attention:  Alex Koves, President

Email: akoves@Mar-Kov.com

A notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this Agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. Any operational notice related to the Services or Software Client (as distinguished from a legal notice) may be posted on the Website or delivered to Customer through the Software Client or by e-mail and shall be effective when so delivered, but need not be expressly acknowledged by Customer.

9.3.             Assignment.  Customer may not assign or otherwise transfer any of its rights or obligations under this Agreement. Service Provider may assign or otherwise transfer any or all of its rights or obligations under this Agreement in the case of a sale or other transfer of all or substantially all of its assets or equity (whether by sale of assets or stock or by merger or other reorganization) without the prior consent of Customer.

9.4.             Successors.  All of the provisions hereof shall be binding upon and inure to the benefit of the successors, assigns and any other transferees of the parties hereto.

9.5.             Amendment.  Service Provider may at any time amend the terms of this Agreement by updating the Agreement and providing notice to Customer of the amendment.

9.6.             Headings.  The headings used in this Agreement are inserted for convenience only and shall not affect the meaning or interpretation of this Agreement.

9.7.             Counterparts.  This Agreement may be executed in any number of counterparts, and delivered through a facsimile machine or as a .pdf attached to email, and each counterpart so executed and delivered shall be deemed an original, all of which together shall constitute one instrument.

9.8.             Applicable Law.  This Agreement shall be interpreted and governed according to the laws of the Province of Ontario.

9.9.             Dispute Resolution.  Upon any claim or dispute between the parties hereto and arising out of, or in connection with, this Agreement or the relationship created between said parties as a result of this Agreement shall first be submitted to non-binding mediation before resorting to litigation. Mediation, suit, or any other method of dispute resolution shall be initiated and conducted exclusively in Toronto, Ontario, and each party hereby consents to the jurisdiction of courts located in the Province of Ontario. 

9.10.          Severability.  In the event that any provisions of this Agreement, or any portions thereof, are held to be unenforceable or invalid by any court of competent jurisdiction, the validity and enforceability of the remaining provisions or portions of this Agreement shall not be affected thereby.

9.11.          Survival.  The provisions of Sections 2.4, 2.5, 2.6, 3, 4, 6, 7, 8 as well as any accrued payment obligations (including any tax payment obligations) under Section 5, shall survive the termination of this Agreement for the periods contemplated thereby (or if no period is contemplated, indefinitely).

9.12.          Third Party Beneficiaries.  The provisions of the Agreement are for the benefit of the parties hereto and not for any creditor, Service User or other third party.  No person other than a party to this Agreement may rely upon or enforce any provisions of this Agreement. 

9.13.          Entire Agreement.  This Agreement constitutes the entire understanding and agreement of the parties relating to the subject matter hereof, and supersedes all prior or contemporaneous agreements and understandings, whether written or oral.