Schedule "A"
Terms of Service

• 1. Obius Solution.  Subject to Customer’s and its employees or individual contractors (the “Permitted Users”)’ compliance with the terms and conditions of this Agreement Letter, Obius will make the Obius Solution available to Customer and Permitted Users on the terms and conditions set out in this Agreement Letter during the Term. The Customer is responsible for identifying and authenticating all Permitted Users and for Permitted Users’ use of the Obius Solution in compliance with this Agreement Letter.
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• 2. Restrictions on Use.  Customer will not itself, and will not permit others to:
  (a) sublicense, sell, rent, lend, lease, commercially exploit or distribute the Obius Solution or any Intellectual Property Rights therein, or otherwise make the Obius Solution available to others other than Permitted Users;
  (b) use or access the Obius Solution in violation of any applicable law; in a manner that threatens the security or functionality of the Obius Solution; or for any purpose or in any manner not expressly permitted in this Agreement Letter;
  (c) use the Obius Solution 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;
  - Customer does not have the lawful right to create, collect, transmit, store, use or process; 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);
  (d) Modify the Obius Solution; 
  (e) reverse engineer, decompile or disassemble the Obius Solution; 
  (f) remove or obscure any proprietary notices or labels on the Obius Solution, including brand, copyright, trademark and patent or patent pending notices;
  (g) access or use the Obius Solution for the purpose of building a similar or competitive product or service; 
  (h) perform any vulnerability, penetration or similar testing of the Obius Solution. 
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• 3. Suspension of Access; Scheduled Downtime; Modifications.  Obius may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement Letter:suspend Customer’s access to or use of the Obius Solution or any component thereof:if Customer or any Permitted User violates any provision of this Agreement Letter;for scheduled maintenance;due to a Force Majeure;to address any emergency security concerns;if required to do so by a regulatory body or as a result of a change in applicable law; orfor any other reason as provided in this Agreement Letter; andModify the Obius Solution.Any suspension of the Obius Solution by Obius pursuant to the terms of this Agreement Letter will not excuse Customer from its obligation to make payments under this Agreement Letter. 
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• 4. Subcontracting.  Obius may engage third parties to assist it in providing the Obius Solution or any part thereof. 
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• 5. Third-Party Products. The Obius Solution may contain or require the use of Licensed Third Party Technology or other third party products that are owned by third parties (collectively “Third-Party Products”). Customer will accept and comply with the license terms applicable to Third-Party Products. Any acquisition by Customer of such Third-Party Products, and any exchange of data between Customer and any such provider of Third-Party Products is solely between Customer and the applicable Third-Party Products provider. Obius does not warrant or support Third-Party Products or other third-party products, offerings or services, whether or not they are designated by Obius as “certified” or otherwise. Obius cannot guarantee the continued availability of such Third-Party Products features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third-Party Products ceases to make the Third-Party Products available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Obius. Obius is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Products or its provider.
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• 6. Ownership and Intellectual Property.
  (a) Customer Data. The Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Obius, and its subcontractors, a nonexclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to a access, collect, use, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to: 
  - provide the Obius Solution; 
  - improve and enhance the Obius Solution and its other products and services offerings; and 
  - produce and/or generate data, information, or other materials that are anonymized and not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data”). 
  ‍For greater clarity, Obius may use, process, store, disclose and transmit the Aggregated Data for any purposes, including for commercial exploitation, and without restriction, compensation or obligation to Customer of any kind. 
  (b) Obius Intellectual Property. Obius or its licensors retain all ownership and Intellectual Property Rights in and to (1) the Obius Solution (or any component thereof); (2) anything developed or delivered by or on behalf of Obius under this Agreement Letter; (3) all other Obius’ Confidential Information, including but not limited to, any reports generated from the Obius Solution and any Aggregated Data; (4) any Modifications to the foregoing (i), (ii) and (iii) (collectively “Obius Property”). All rights not expressly granted by Obius to Customer under this Agreement Letter are reserved.
  (c) Feedback. Customer grants to Obius a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Obius Solution, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Obius Solution or any of Obius’ affiliates’ services (“Feedback”). Nothing in this Agreement Letter will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Obius is not obligated to use any Feedback.
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• 7. Fees and Payment
  (a) Fees.  Customer will pay to Obius the Fees as set out in this Agreement Letter (“Fees”). Unless otherwise noted on the Letter: (i) all Fees are identified in Canadian dollars; (ii) Fess are payable in advance; and (iii) Fees are non-cancelable and non-refundable. Obius 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.
  (b) Payment Methods. Customer must provide a valid method of payment before accessing the Obius Solution. Customer agrees and acknowledges that Obius may bill Customer’s payment method in accordance with this Letter Agreement or as may be set out in the corresponding invoices. 
  (c) Invoicing and disputed charges. Obius will prepare and send to the Customer, at the then-current contact information on file with Obius, 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 days of the invoice date. If the Customer believes Obius has charged or invoiced the Customer incorrectly, the Customer must contact Obius no later than 30 days after having been charged by Obius 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, the 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. 
  (d) Late Payment.  The Customer may not withhold or setoff any amounts due under this Agreement Letter. Obius reserves the right to suspend the Customer’s access to the Obius Solution until all due and undisputed amounts are paid in full. (e) Taxes.  The Fees set out in this Agreement Letter do not include applicable sales, use, gross receipts, value-added, excise, 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 Letter other than taxes based on the net income or profits of Obius.
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• 8. Confidential Information
  (a) Definitions.  For the purposes of this Agreement Letter, a party receiving Confidential Information (as defined below) will be the “Recipient”, the party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement Letter, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; 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. 
  ‍(b) Confidentiality Covenants.  The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement Letter: 
  - disclose Confidential Information of the Discloser to any person, except to its own employees, consultants and agents having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement Letter, and to such other recipients as the Discloser may approve in writings; and solely in the case of Obius, to its subcontractors or contractors to the purposes of providing the Obius Solution. 
  - use Confidential Information of the Discloser; or 
  - alter or remove from any Confidential Information of the Discloser any proprietary legend.Each party will take industry standard precautions to safeguard the other party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type. 
  (c) Required Disclosure.  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; or (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.
  (d) Return of Confidential Information.  Upon the termination of this Agreement Letter, each party will promptly return to the other party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 12(c) below) of the other party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Obius may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement Letter. 
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• 9. Warranty and Disclaimer
  (a) Customer Warranty.  Customer will be solely responsible for the quality, accuracy and completeness of the Customer Data. In addition, Customer represents and warrants to Obius 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 and in compliance with applicable laws, including applicable privacy laws, to enable Obius to provide the Obius Solution, including without limitation with respect to the collection, storage, access, use, disclosure, processing and transmission of Personal Information, including by or to Obius and to or from all applicable third parties.
  (b) GENERAL DISCLAIMER.  OBIUS DOES NOT WARRANT THAT THE OBIUS SOLUTION WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS, DATA OR INFORMATION THAT MAY BE OBTAINED FROM USE OF THE OBIUS SOLUTION.  THE OBIUS SOLUTION AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY OBIUS TO CUSTOMER ARE PROVIDED “AS IS”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OBIUS HEREBY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE. 
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• 10. Indemnity. The Customer will defend, indemnify and hold harmless Obius, and its officers, directors, employees and agents (each, a “Obius Indemnitee”) from and against any and all Losses incurred by a Obius Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Obius Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement Letter; (iii) unauthorized use of the Obius by the Customer or any Permitted User; or (iv) use of the Obius Solution (or any part thereof) by Customer or any Permitted User in combination with any third party solution, application or service. Customer will fully cooperate with Obius in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement Letter and will not settle any such claim without the prior written consent of Obius.
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• 11. Limitation of liability. 
  ‍(a) AMOUNT.  IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF OBIUS IN CONNECTION WITH OR UNDER THIS AGREEMENT LETTER EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE OBIUS SOLUTION IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. 
  (b) TYPE.  TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL OBIUS BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (1) EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES; (2) LOST OR LOSS OF (i) SAVINGS, (ii) PROFIT, (iii) DATA, (iv) USE, OR (v) GOODWILL; (3) BUSINESS INTERRUPTION; (4) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES;  OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT LETTER.  
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• 12. Termination
  (a) Termination by Obius. Notwithstanding anything to the contrary in this Agreement Letter, Customer’s and all Permitted Users’ access or right to use to the Obius Solution may be terminated or suspended by Obius at any time at Obius’s sole discretion; notably if (1) if Obius believes that Customer or any Permitted User has violated this Agreement Letter; (2) if Obius believes the use of Customer Data with the Obius Solution is not in Obius’s or its users’ best interests; (3) if Obius ceases to offer the Obius Solution; or (4) as required by applicable laws. Obius may also in its discretion terminate this Agreement Letter effective immediately upon delivery of notice of termination to Customer if Customer becomes insolvent, ceases to conduct business in the ordinary course, takes any step or proceeding available to Customer for the benefit of insolvent debtors, or is subject to a proceeding for liquidation, dissolution or winding up, or a receiver, receiver-manager, liquidator or trustee in bankruptcy.
  (b) Termination by either party. The parties may terminate this Agreement Letter at any time by providing at least 30 days advance written notice to Customer. Each of the parties may, in addition to other relief, terminate this Agreement Letter if the other party commits a material breach of this Agreement Letter and fails to correct such breach within 15 calendar days after receipt of notice of such breach. 
  (c) Effect of Termination.  Upon termination of this Agreement Letter, Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Obius Solution and return any Obius Property in its possession and certify in writing to Obius that the Obius Property has been returned. No termination will affect Customer’s obligation to pay all Fees that may have become due before such termination or entitle Customer to any refund. All Fees due and payable and any amounts due to Obius are immediately due and are to be immediately paid by Customer to Obius. No termination will entitle the Customer to any refund. Within 30 calendar days following termination, Obius will, at Obius’ option and request, return to Customer (if a format mutually agreed by the parties) or delete or otherwise render inaccessible any Customer Data that remains in the hardware or systems used by Obius to provide the Obius Solution. After such 30-day period, will have no obligation to maintain or provide any Customer Data and will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. Provided, however, that Obius will not be required to remove any Customer Data from its backup media and services that are maintained in accordance with its standard back procedures of record retention policies until such time as such backups are scheduled to be deleted provided that in all cases Customer Data will continue to be protected in accordance with this Agreement Letter. 
  (d) Survival.  The following Sections, together with any other provision of this Agreement Letter which expressly or by its nature survives termination, or which contemplates performance or observance subsequent to termination of this Agreement Letter, will survive termination of this Agreement Letter for any reason: Section 6 (Ownership and Intellectual Property), Section  (Confidential Information), Section 9 (Warranty and Disclaimer), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 12(d) (Survival), and Section 13 (General Provisions).
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• 13. General Provisions
  (a) Assignment.  Customer may not assign this Agreement Letter to any third party without Obius’ prior written consent. Obius may assign this Agreement Letter or any rights under this Agreement Letter to any third party without Customer’s consent. 
  (b) Governing Law and Jurisdiction.  This Agreement Letter and any action related thereto will be governed by and construed in accordance with the laws of the Quebec and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The courts located in Montreal, Province of Quebec, Canada will have exclusive jurisdiction to adjudicate any dispute relating to this Agreement Letter. 
  (c) Export Restrictions.  Customer will comply with all export laws and regulations that may apply to its access to or use of the Obius Solution. Obius makes no representation or warranty that the Obius Solution may be exported without Customer first obtaining appropriate licenses or permits under applicable law, or that any such license or permit has been, will be, or can be obtained. 
  (d) Severability.  Any provision of this Agreement Letter found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement Letter and all other provisions of this Agreement Letter will remain in full force and effect.
  (e) Entire Agreement.  This Agreement Letter constitutes the entire agreement between the parties with respect to the subject matter of this Agreement Letter and supersedes all prior or contemporaneous agreements, representations or other communications between the parties, whether written or oral.
  (f) Amendments.  No amendment, supplement, modification, waiver, or termination of this Agreement Letter and, unless otherwise expressly specified in this Agreement Letter, no consent or approval by any party, will be binding unless executed in writing by the party or parties to be bound thereby. 
  (g) Customer Lists. Obius may identify the Customer by name and logo as a Obius customer on Obius’ website and on other promotional materials. 
  (h) English Language.  The parties hereby acknowledge that the terms of this Agreement Letter have been negotiated by them and that they have expressly agreed that this Agreement Letter and all related documents be drawn up in English. Les parties reconnaissent que les termes de la présente lettre d'entente ont été négociés par elles et qu'elles ont expressément convenu que la présente lettre d'accord et tous les documents qui s’y rattachent soient rédigés en anglais.
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• ‍14. DefinitionsIn addition to any other capitalized words whose meaning is set out directly in this Agreement Letter, the following capitalized words have the meaning set out below:
  a) “Customer Data” means any data (including but not limited to any customer, sales, products and inventory data), information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Obius Solution, including but not limited to Personal Information, excluding Aggregated Data and any other Obius Property.
  b) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  c) “Licensed Third Party Technology” means third party technology that is licensed under separate license terms and not under this Agreement Letter. 
  d) “Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers. 
  e) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
  f) “Personal Information” means any information which relates to a natural person and allows that person to be identified.
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version 1.2
last updated on November 24th 2023