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FINCHAT ENTERPRISE TERMS

These Enterprise Terms (the “Enterprise Terms”) govern the use of the Enterprise Services (as defined below) by the Client and its Users (“you”, “your”, and terms of similar meaning) made available by Stratosphere Technology Inc. (“Provider”, we”, us”, and terms of similar meaning). Use of our FinChat services, such as FinChat, FinChat Plus and FinChat Pro, are governed by the Terms of Service.
By accepting these Enterprise Terms, by (a) clicking a box indicating acceptance, (b) accepting or executing an Order Form that references these Enterprise Terms, or (c) otherwise accessing or using the Enterprise Services, you agree to be bound by these Enterprise Terms, and all terms, policies and guidelines incorporated by reference in these Enterprise Terms.
If the individual accepting these Enterprise Terms is accepting on behalf of a company or legal entity, such individual represents that they have the authority to bind such entity and its affiliates to these Enterprise Terms , in which case the term “Client” or “User” (as the case may be) shall refer to such entity and its affiliates.
Order Forms are automatically deemed to include all of the terms and conditions of these Enterprise Terms; provided that whenever the provisions of the Order Form expressly conflict with these Enterprise Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Enterprise Terms.
1         DEFINITIONS
1.1        “Administrator” means a person or persons assigned by the Client to have the authority to act as the administrator of the subscription on behalf of the Client.
1.2        “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over these Enterprise Terms or the supply or use of the Services.
1.3        “Application” means the application, product, or service developed by the Client into which the Software will be integrated via the Embed.
1.4        “Client” shall mean the individual or organization who is bound by the terms of the Order Form and these Enterprise Terms.
1.5        “Client Data” means any data or content inputted into the Software by the Client or any of its employees or Users.
1.6        “Client End-User” means a third-party end-user (e.g. customer of the Client), who has access to the Client’s Application.
1.7        “Documentation” means FinChat Enterprise documentation described at https://finchat.io/enterprise/docs/ from time to time.
1.8        “Embed” means the integration which enables the Client to (a) embed elements of the Software into the Client’s Application(s); and (b) perform additional functions as permitted by the Provider from time to time.
1.9        “Enterprise Credentials” means collectively the unique security keys, tokens, passwords and/or other credentials provided by the Provider to you that are used to access and make authenticated requests to the Embed.
1.10      “Enterprise Services” means the use of the Embed to integrate the Software into the Client’s Application, any Professional Services identified in the Order Form, and other related services to be provided by the Provider to the Client pursuant to the Order Form.
1.11      “Fees” means the fees to be paid by the Client pursuant to the Order Form, these Enterprise Terms and any applicable Schedules.
1.12      “Order Form” means (i) the FinChat Order Form; or (ii) an online order specifying the Services to be provided hereunder, in each case that is entered into between the Client and the Provider, including any Schedules, addenda and supplements thereto.
1.13      “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.
1.14      “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation enacted by any province or territory of Canada. 
1.15      “Professional Services” means the professional services as more particularly described in the Order Form and any additional schedules.
1.16      “Provider Data” means any data or content made available through the Software by the Provider and/or its licensors, including any output generated and returned by the Software (except for any Client Data contained in such output).
1.17      “Services” means the use of the Embedded Software, the Professional Services and other related services to be provided by the Provider to the Client pursuant to the Order Form.
1.18      “Software” means the FinChat.io generative AI assistant (including the Provider Data).
1.19      “Terms of Service” means the terms governing the use of the Software, as amended from time to time.
1.20      “Term” shall have the meaning given in Section 12.1.
1.21      “User” means an individual user authorized by the Client who is (a) permitted to use the Enterprise Services; and (b) agreed to the Terms of Service. Users may include an Administrator, employees or contractors of the Client who are authorized to use the Services, but shall not include Client End-Users.
2         PRIVACY AND SECURITY
2.1        Please refer to the privacy policy by clicking here (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose your Personal Information. By using the Enterprise Services, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.
3         USER ACCOUNTS
3.1        Provisioning and User Accounts. Upon agreeing to an Order Form, the Client or the initial Administrator of the Client will be permitted to register for a User account within a portal provided by the Provider for Enterprise clients (the “Enterprise Portal”)[TG1] . If applicable, the initial Administrator may add other Administrators and authorize Users subject to the limitations and additional terms described in the Order Form. The initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Enterprise Portal for any User.
3.2        Registration. Upon logging into the Enterprise Portal for the first time, the Administrators and Users will be prompted to register for a User account. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Enterprise Portal (“Registration Data”); (b) maintain the security of the their password; and (c) maintain and promptly update the Registration Data, and any other information the they provide to the Enterprise Portal, and to keep it accurate, current and complete.
3.3        Responsibilities for Accounts. The Client shall be responsible for all activity by Users and Client End-Users on the Software, including the activities of Client End-Users who access the software through the Client’s Application. It is the responsibility of the Client to delete User accounts or otherwise remove access to Users and Client End-Users who should no longer be active.
3.4        Client End-Users. Client End-Users are permitted to access and use the Software made available through the Embed subject to the following conditions: (a) any use of the Software made available to Client End-Users on the Client’s Application shall be governed by and subject to such Client End-User’s agreement to the Terms of Service; provided, however, that with respect to each Client End-User’s access to and use of the Software through the Application, to the extent a term in the Software Terms requires payment of a fee for the Client End-User’s use of the Software, the Provider shall not enforce such payment obligation as against the Client End-User since the Client will be responsible for payment of all fees relating to access by Client End-Users who access the Software pursuant to the Enterprise Services; and (b) the Provider shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if the Provider has been advised of the possibility of such damages), resulting from any use by a Client End-User of the Services accessed through the Embed.
3.5        Trial. If a Client agrees to a trial of the Services pursuant to an Order Form (the “Trial”), the Provider will make the applicable Services available to the Client on a trial basis until the end of the trial period, if any, set forth in the Order Form (the “Trial Period”). On or before the last day of the Trial Period, the Client may elect to either: (i) terminate the Trial and the Order by written notice to the Provider effective immediately after the end of the Trial Period as set out in the Order; or (ii) continue to access the Services past the expiry of the Trial in accordance with the Order and these Enterprise Terms. For clarity, after the Trial Period, if any, the Client may only terminate the Order in accordance with Section 12.2 of these Enterprise Terms. Any Client Data accumulated during a Trial Period will be permanently lost if the Customer terminates the Order before the end of the Trial Period. Notwithstanding anything to the contrary, during the Trial Period, the Enterprise Services are provided “as-is” without any warranty, support or service levels and the Company shall have no indemnification obligations nor liability of any type with respect to the Enterprise Services for the Trial Period unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Enterprise Services provided during the Trial shall not exceed $1,000.
4         LICENSE TO THE EMBED AND LICENSE RESTRICTIONS
4.1        Enterprise Credentials. The Client may only access the Embed with the Enterprise Credentials and may not sell, transfer, sublicense or otherwise disclose Enterprise Credentials to any other party or use them with any other Application other than the Application for which the Client initially registered for. The Client is responsible for maintaining the secrecy and security of Enterprise Credentials. The Client is fully responsible for all activities that occur using the Client’s Enterprise Credentials, regardless of whether such activities are undertaken by the Client or a third party.
4.2        License to Embed. The Provider hereby grants to the Client and authorized Users a non-exclusive, non-transferable and non-sublicensable license (except as necessary for the provision of the Software to Client End-Users) to use the Embed for the purpose of embedding the functionalities contained within the Software into the Application for use by the Client End-Users during the Term. The license granted to the Client is subject to the Client’s compliance with any executed Order Form, these Enterprise Terms, and any Documentation.
4.3        License Restrictions. Except as set forth in these Enterprise Terms, the Order Form, and to the extent contrary by Applicable Law: the Client may not and will not permit the Users or Client End-Users to: (a) make or distribute copies of the Software, the Embed or the Enterprise Credentials; (b) alter, copy, merge, adapt, reformat, download, or translate the Software, or decompile, reverse engineer, disassemble, or otherwise reduce the Software or the Embed through automated or other means to a human-perceivable form; (c) sell, rent, share, lease, transfer, distribute, display, host or sublicense the Software or the Embed (except as is incidental or necessary for the provision of the functionalities of the Software to Client End-Users); (d) modify the Software or the Embed or create derivative works based upon the Software or the Embed; (v) breach technological measures intended to prevent database access or safeguards to the integrity of the Embed; (vi) publish Applications that congest the Embed or the Software; (vii) use web scraping, web harvesting or web data extraction methods to extract data from the Software other than as permitted through the Embed; (viii) distribute Applications that violate the law or have a fraudulent purpose; (x) disable, modify or interfere with any features or security controls of the Embed or the Software; (xi)  remove or destroy any confidentiality notices, copyright notices, propriety markings placed within or associated with the Embed; (x) use the Enterprise Services in a manner that breaches the rights of any third party, any contract (including these Terms or Third Party Licenses) or legal duty or violate any Applicable Law; (xi) copy the Enterprise Services or any part, feature, function or user interface thereof; (xii) access or use the Enterprise Services in any way for the purposes of competing with the Software or Enterprise Services or in order to build a competitive product or service; (xiii) market, display or otherwise provide the Enterprise Services, the Software and/or the Provider Data to any person or entity other than a Client End-User or User.
4.4        Attribution. Unless otherwise set forth in any Order Form, you must conspicuously display the “powered by FinChat.io” attribution on or adjacent to any Embed, or in any other deployment of the Software, or elements thereof, on the Application.
4.5        Modifications. The Provider reserves the right to modify the Embed, and to release subsequent versions of the Software and the Embed; provided that during the Term, the Embed will continue to have substantially the same functionality as of the Effective Date. To the extent possible, the Provider will communicate planned changes of the Embed to the Client by e-mail. The Client is responsible for dealing with any impact on systems and the Application as a result of such changes. The Client is responsible for the technical knowledge, equipment, communication and software, required in order use the Embed. The Client may be required to obtain and use the most recent version of the Embed in order to obtain functionality of the Application.
4.6        Usage Limitations. The Provider may limit the number of network calls that the Application may make via the Embed, and/or the maximum file size, and/or the maximum content that may be accessed, or anything else about the Embed and the content it accesses, to the extent set forth in the applicable Order Form. The Provider may utilize technical measures to prevent over-usage and/or stop usage of the Embed by an Application upon\ prior notice to the Client after any usage limitations are exceeded.
5         SUPPORT
5.1        Support.  Support services are provided to the Client in accordance with the terms of the Provider’s Service Level Agreement.
6         ADDITIONAL SERVICES
6.1        Change Request. If the Client wishes at any time to request a change in the Professional Services under the Order Form, or if the Client requests the Provider to provide Professional Services outside the scope of the Professional Services that are specifically specified in the Order Form, the parties will work towards the execution of a new Schedule outlining the additional Professional Services.
6.2        Services.  The Provider shall in all material respects perform the Professional Services in accordance with the Order Form, these Enterprise Terms and the applicable Schedule(s), and in a timely, diligent and professional manner. However, the timely and effective completion of the Professional Services requires the successful co-operation of the parties and the timely performance by each of them of their obligations hereunder, including delivery by Client to Provider of information and materials and the timely performance by Client of the various activities, in each case either expressly or implicitly described in the Order Form or a Schedule, as the case may be.
6.3        Work Schedule. Subject to Section 14.5 of these Enterprise Terms, unless they are expressly described as firm deadlines, in which case the Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in an Order Form represent estimates that the Provider shall use its reasonable commercial efforts to achieve. The Client acknowledges that the Provider’s successful and timely performance of the Professional Services is dependent on the active participation and collaboration of the Client, its Administrator(s) and/or Users, employees and representatives. The Client shall, and shall cause its Administrator(s) and/or Users, employees and representatives, to act reasonably and cooperate fully with the Provider with respect to the Provider’s performance of the Services. The Provider shall not be liable for any delay, cost or expense caused as a result of the delay of the Client, its Administrator(s) and/or Users, employees and representatives, provided that the Provider has notified the Client of such delay.  
7         REPRESENTATIONS AND WARRANTIES; CLIENT RESPONSIBILITIES
7.1        Mutual Representations and Warranties. Each party represents and warrants that (a) its performance hereunder will be consistent with these Enterprise Terms and any licenses provided and comply with Applicable Law; (b) it has the right to enter into these Enterprise Terms and perform the obligations hereunder. Each party shall be liable for the acts and omissions of any of its Users, Client End-Users (as applicable), directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the party.
7.2        Responsibilities. The Client agrees that (a) it shall be responsible for providing and maintaining its own Internet access with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Client Equipment”) at the Client’s location(s) necessary for accessing the Enterprise Services; and (b) the Client is solely responsible for providing, updating, uploading, modifying and maintaining the Client Data.
7.3        Required Programs. The Client acknowledges that delivery of the Services may require that the Client obtain and install certain additional software programs (“Required Programs”) or add-ons as more particularly described in the Order Form. Unless indicated in the Order Form, the Client shall be responsible, at its own expense, to acquire, maintain, upgrade, and replace as necessary, the Required Programs.
8         FEES, EXPENSES AND PAYMENT
8.1        Fees. In consideration for the Enterprise Services described herein, the Client shall pay to the Provider the Fees more particularly described in the Order Form. Except as otherwise specified herein or in the Order Form, payment obligations are non-cancelable and Fees paid are non-refundable.
8.2        Invoices and Payments. The Provider shall invoice the Client, in advance, for the Services in accordance with the terms of the Order Form. The Client shall pay such invoices within the time specified in the Order. Late payments are subject to interest in the amount of 1.5% per month on overdue amounts and interest thereon, up to 18% per annum.
8.3        Taxes. All Fees and other amounts payable by the Client under are exclusive of taxes and similar assessments. The Client shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder, other than any taxes imposed on the Provider’s income.
8.4        Refund Policy. The Client may cancel its subscription in accordance with Section 12.2(a), and such termination will take effect at the end of the current billing cycle. The Client will continue to have access to the Services from the time the Client terminates its subscription until the start of the next billing cycle and no refunds or credits will be provided for any unused days within the Client’s ongoing billing cycle.
9         INTELLECTUAL PROPERTY, CLIENT DATA AND PRIVACY
9.1        Ownership of the Software. Except for any grant of licenses in these Enterprise Terms or as otherwise expressly provided in the Order Form, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Embed, the Software and the Provider Data. Nothing in these Enterprise Terms, the Order Form, or any Schedules shall be deemed to convey to the Client or any other party, any ownership right, in or to Software the Embed or the Provider Data.  
9.2        Professional Services and Resulting Work Product. The Professional Services may include, without limitation, customization, integrations, ad hoc development of new features and functionality, as requested by the Client and as specified in an Order Form or Schedule. Such work shall collectively be referred to as “Work Product”. Unless otherwise provided in the applicable Order Form, (a) the Provider or its licensors, as applicable, shall own all right, title and interest, including, without limitation, all copyright, patent rights, trade secret rights, trademarks and any other proprietary right or interest in the Work Product; and (b) the Provider shall license such Work Product to the Client and its Users in accordance with the terms of an Order Form, or if such Order Form silent in that respect, the license to the Work Product offered hereunder shall be under the same terms as the license to the Embed.
9.3        Ownership of Client Data. The Provider acknowledges and agrees that, as between the Parties, the Client is the sole and exclusive owner of the Client Data, and that no right or interest in the Client Data is assigned to the Provider, other than pursuant to Section 9.4 of these Enterprise Terms, and will be collected, handled and used by the Provider only in compliance with the Enterprise Terms of these Enterprise Terms.
9.4        License from Client to Provider. The Client hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Client Data provided to the Provider solely to perform Services pursuant to these Enterprise Terms.
9.5        All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form, all intellectual property rights are expressly reserved by the parties. The Client or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Client, as applicable, from time to time in order to give effect to the provisions of this Article.
9.6        Privacy Laws. Each of the parties represents and warrants that (a) it has complied and will comply with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information; and (b) all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in these Enterprise Terms.
9.7        Third Party/Open Source Software and Sites. The Software may contain third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). Without limitation, financials and estimates within the Services are provided by S&P Market Intelligence LLC and its suppliers, which shall have exclusive proprietary rights in such data. By accepting these Enterprise Terms, the Client and its Users are also accepting the Third-Party Licenses, if any, set forth therein. These Third-Party Licenses are made a part of and incorporated into these Enterprise Terms.  To view the Third-Party Licenses, please contact [email protected]. The Software may also contain links to third-party websites (“Third-Party Sites”) and third-party content (“Third-Party Content”). The Client and each User and Client End-User may use such links to Third-Party Sites and any Third-Party Content or service provided there at their own risk. The Provider does not monitor or have any control over, and makes no claim or representation regarding, Third-Party Content or Third-Party Sites. The Provider accepts no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of, Third-Party Content or Third-Party Sites. When a User or Client End-User leaves the Software, these Enterprise Terms no longer governs. The Client and each User or Client End-User are responsible for reviewing the applicable terms and policies, including, without limitation, privacy and data gathering practices of any Third-Party Site.
9.8        License by Client to Use Feedback. The Client grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Client or Users relating to the operation of the Software or the Services.
10       DISCLAIMER AND LIMITATION OF LIABILITY
10.1      DISCLAIMER. EXCEPT AS SET OUT IN THE ORDER FORM OR THESE ENTERPRISE TERMS, THE ENTERPRISE SERVICES ARE PROVIDED TO THE CLIENT AND AUTHORIZED USERS ON AN “AS IS” BASIS, WITHOUT WARRANTIES FROM THE PROVIDER OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM. THE PROVIDER DOES NOT WARRANT THAT THE ENTERPRISE SERVICES OR THE SOFTWARE WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION.
THE PROVIDER IS NOT A TAX ADVISOR, BROKER, FINANCIAL ADVISOR OR INVESTMENT ADVISOR. THE CONTENT ON THE SOFTWARE IS NOT INTENDED TO PROVIDE TAX, LEGAL, FINANCIAL OR INVESTMENT ADVICE, AND NOTHING ON THE SOFTWARE SHOULD BE CONSTRUED AS AN OFFER TO SELL, A SOLICITATION OF AN OFFER TO BUY, OR A RECOMMENDATION FOR ANY SECURITY. YOU ACKNOWLEDGE THAT NO CONTENT PUBLISHED ON THE SOFTWARE CONSTITUTES A RECOMMENDATION THAT ANY SECURITY, PORTFOLIO OF SECURITIES, TRANSACTION OR INVESTMENT STRATEGY IS SUITABLE FOR ANY SPECIFIC PERSON. YOU FURTHER ACKNOWLEDGE THAT THE PROVIDER IS NOT ADVISING YOU PERSONALLY CONCERNING THE NATURE, POTENTIAL, VALUE OR SUITABILITY OF ANY SECURITY, PORTFOLIO OF SECURITIES, TRANSACTION, INVESTMENT STRATEGY, OR OTHER MATTER.
10.2      No Indirect, Etc. Damages. Except for a party’s gross negligence or willful misconduct, no party shall be liable to the other party for any claim for (i) indirect, incidental, special or consequential damages, (ii) loss or inaccuracy of data or cost of procurement of substitute goods, services or technology, (iii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to these Enterprise Terms or any Services, even if advised of the possibility thereof. The Provider shall not be responsible for any matter beyond its reasonable control.
10.3      Limitation of Aggregate Liability. Except for a party’s gross negligence or willful misconduct: (a) the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from these Enterprise Terms shall not exceed the Fees paid or payable by the Client to the Provider under these Enterprise Terms in the six (6) months preceding the Loss; and (b) the Provider’s indemnification obligations hereunder will be limited to an amount equal to the greater of (i) five hundred thousand dollars ($500,000.00) or (ii) three times the Fees paid or payable by the Client under these Enterprise Terms in the twelve (12) month period preceding the event giving rise to the indemnification obligation.
10.4      Reasonableness of Limitations. The parties agree that the limitations contained in this Section 9 are reasonable in scope and form an integral part of these Enterprise Terms.
11       INDEMNIFICATION
11.1      Indemnity by the Provider. Subject to the limitations set forth in Section 10.3, the Provider agrees to defend, indemnify and hold the Client, its directors, officers, employees, agents, contractors and affiliates, harmless from any Losses that the Client may incur as a result of or in connection with any third party claim relating to or resulting from (a) any third party claim that the Enterprise Services or Client’s use thereof infringes, misappropriates or otherwise violates the intellectual property rights of any such party; or (b) any breach of the Provider’s obligations of confidentiality under these Enterprise Terms.
11.2      Limitations. The Provider shall not be obligated to indemnify the Client to the extent that the Loss results from: (a) Client’s or a User’s or Client End-User’s breach of the Terms; (b) combination of the Enterprise Services with any product or service not provided or authorized in writing by Provider (where such infringement claim would not have arisen but for such combination); or (c) modification of the Enterprise Services other than performed or authorized in writing by Provider; (d) a breach by the Client or the Users or Client End-Users of a Third Party License; (e) third-party software or services.
11.3      Indemnity by the Client. The Client agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any Losses that the Provider may incur as a result of or in connection with any third party claim relating to or resulting from (a) any breach by the Client, Users or Client End-Users of these Enterprise Terms(b) any third party claim that the Provider’s use of any Client Data, infringes, misappropriates or otherwise violates the intellectual property rights of any such party; (c) the Client Applications; or (d) any breach of the Client’s obligations of confidentiality under these Enterprise Terms.
12       TERM
12.1      Term. The term of these Enterprise Terms (“Term”) shall commence on the Effective Date or date of acceptance of these Enterprise Terms set out in the Order Form and will continue for the length of time described in the Order Form as the Initial Term (“Initial Term”). Thereafter, subject to the Order Form, these Enterprise Terms will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Enterprise Terms”), unless terminated in accordance with these Enterprise Terms and the Order Form.
12.2      Termination.
(a)      Prior to Renewal. Unless otherwise provided in the Order Form, either party may terminate these Enterprise Terms by providing written notice to the other party sixty (60) days prior to the end of the then current term. For greater certainty, such notice may be given prior to the end of such current term, but will only take effect at the end of the then current term.
(b)     Breach. Either party may terminate these Enterprise Terms if the other party materially breaches these Enterprise Terms, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c)      Insolvency. Either party may terminate these Enterprise Terms, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.
12.3      Termination and Suspension of Users. Notwithstanding any provision of these Enterprise Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Client or any User, to (a) terminate a User’s or Client End-User’s license to use the Software, or any portion thereof; or (b) block or prevent a User’s or Client End-User’s future access to and use of all or any portion of the Software.
12.4      Effect of Termination.  If these Enterprise Terms is terminated in accordance with Section 11.2, then:
(a)      Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b)     upon a request by the Client within thirty (30) days of termination, the Provider will within fifteen (15) days of such request, provide to the Client a copy of the Client Data in a format that is readable using commercially available third party software and or the Software, including .csv, .xls and .xlsx formats; and
(c)      upon a request by the Client within thirty (30) days of termination, the Provider will delete and cause to be deleted all Client Data from all computer systems owned and controlled by the Provider.
13       CONFIDENTIALITY
13.1      Definition of Confidential Information. “Confidential Information” means all information, documentation, databases, computer software, designs, drawings, pictures or other images (whether still or moving), sounds and content disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Client’s Confidential Information includes Client Data. The Provider’s Confidential Information includes the Software, the Services and the Enterprise Terms and conditions of these Enterprise Terms. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was in the lawful possession of or was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) is independently developed by the Receiving Party, which independent development can be shown by written evidence.
13.2      Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of these Enterprise Terms; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with these Enterprise Terms and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.
13.3      Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law, by any court of competent jurisdiction or by any regulatory or administrative body to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.
13.4      Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of these Enterprise Terms (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other party or destroy such copies as directed by that party and certify their destruction.
14       GENERAL
14.1      Governing Law. These Enterprise Terms shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein.  These Enterprise Terms shall be treated, in all respects, as an Ontario contract.
14.2      Survival. Any Enterprise Terms and conditions of these Enterprise Terms which by their nature extend beyond termination of these Enterprise Terms shall survive such termination. This includes, without limitation Section 9 (Intellectual Property, Client Data and Privacy) (but not section 9.4 (License from Client to Provider)), Section 10 (Disclaimer and Limitation of Liability), Section 11 (Indemnification), Section 12.4 (Effect of Termination), Section 13 (Confidentiality) and applicable provisions of Section 14 (General).
14.3      Dispute Resolution.
(a)      This Section 14.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with these Enterprise Terms, or in respect of any legal relationship associated with or derived from these Enterprise Terms (“Disputes”).
(b)     Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.
(c)      All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.
(d)     Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.
14.4      Relationship. The relationship between the Client and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Client and is not entitled to any benefits that the Client may provide to its employees.  Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in these Enterprise Terms.
14.5      Force Majeure. Except as expressly provided otherwise in these Enterprise Terms, dates and times by which the Client or the Provider is required to perform under these Enterprise Terms, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Client or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party).  The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis.  The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event.  A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available. 
14.6      Non-Solicitation. During the Term and for a period of one (1) year following termination of these Enterprise Terms for any reason, neither party may, directly or indirectly, (a) solicit for employment any employee or independent contractor of the other party who was materially involved in the performance of these Enterprise Terms; or (b) induce or attempt to induce any employee or independent contractor of the other party who was materially involved in the performance of these Enterprise Terms to leave his or her employ or contract, as applicable, with such other party.  The foregoing will not prevent either party from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor. 
14.7      Currency. Unless otherwise specified in the Order Form, all references to amounts of money in these Enterprise Terms refer to United States (USD) currency.
14.8      Notices. Notices that we give to you (other than notice of amendment of these Enterprise Terms), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any registration data. Second, we may post a notice on the Provider’s website. It is your responsibility to periodically review the Provider’s website for notices. The Client may provide notice to the Provider by (a) submitting a ticket through the helpdesk; or (b) e-mailing the Provider.
14.9      Successors and Assigns. These Enterprise Terms shall enure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign these Enterprise Terms, in its sole discretion.
14.10   Severability. Any provision of these Enterprise Terms which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of these Enterprise Terms, all without affecting the remaining provisions of these Enterprise Terms or affecting the validity or enforceability of such provision in any other jurisdiction.
14.11   Entire Agreement. These Enterprise Terms, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of these Enterprise Terms and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.
14.12   Waiver. No term or provision of these Enterprise Terms is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.
14.13   Fully Negotiated Agreement. The Client and the Provider acknowledge and agree that all of the provisions of these Enterprise Terms have been fully negotiated, that neither of them shall be deemed the drafter of these Enterprise Terms and that, in construing these Enterprise Terms in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.
14.14   Language. The parties have required that these Enterprise Terms and all deeds, documents and notices relating to these Enterprise Terms be drawn up in the English language.  Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.
14.15   Modification of Terms. The Provider may modify these Enterprise Terms at any time by (a) posting a notice on the Provider’s website or on the Software; or (b) by e-mailing the Administrator(s) of the Client. The Provider will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services.
14.16   Questions. If you have any questions regarding these Enterprise Terms or your use of the Services, please contact us here:
Stratosphere Technology Inc.