AlayaCare Terms of Service
(Please note that the following Terms of Service apply to registered, paid users of the AlayaCare Services, not to visitors to the AlayaCare website generally.)
AlayaCare accepts Customer’s Purchase Order on the express condition that Customer agrees to and is bound by the terms and conditions set forth below (the “Terms of Service”). All Purchase Orders by Customer shall be subject to the Terms of Service, which are incorporated by reference therein. Such agreement shall be conclusively and irrevocably evidenced by Customer accepting provision of Services under such Purchase Order or by Customer’s payment of an invoice covering such Purchase Order.
The Terms of Service are made between you, the “Customer”, as identified in the Purchase Order (who may be referred to in the Terms of Service by “you or “your”), and Alaya Care Inc., a corporation with its principal office located at 4200 St-Laurent, #800, Montreal, QC, Canada (“AlayaCare”, who may also be referred to in the Terms of Service as “we” or “us”).
We may update these Terms of Service from time to time. If we do so, we will notify you at the email address you provide in your Purchase Order at least thirty (30) days before the update. If you do not agree with the changes you can cancel the Services and stop using the Site without further obligation, except for the payment of amount due for any outstanding Services, and terminate these Terms of Service. Any changes or modifications to these Terms of Service will be effective immediately upon posting of the revisions on the Site, and your continued use of the Services and/or the Site after such time will constitute your acceptance of such changes or modifications. You should from time to time review these Terms of Service to understand the terms and conditions that apply to your use of the Services and Site.
1.1 “Affiliate.” With respect to Customer, any parent or subsidiary corporation, and any corporation or other business entity controlling, controlled by or under common control with Customer, which agrees in writing to be bound by all the obligations of Customer hereunder.
1.2 “AlayaCare Technology.” The computer hardware, software and software updates, and all improvements or enhancements thereto, and other tangible equipment and intangible computer code necessary to deploy and serve the Services via the Site. The functionality of the AlayaCare Technology is available at http://www.alayacare.com/platformfunctionality.
1.3 “Authorized Users.” The number of identifiable unique persons consisting of Customer’s personnel and outside consultants who are authorized to access and use the Services, as specified in the applicable Purchase Order. Authorized Users may include Customer’s authorized and identifiable third party consultants, outsourcers, contractors and other service providers.
1.4 “Customer Data.” Customer’s information or other data processed, stored or transmitted by, in, or through the Services, including without limitation personal information relating to Customer’s personnel, customers, and prospective customers such that the identity of such persons is apparent or can reasonably be determined from such personal information.
1.5 “Proprietary Rights.” Any rights with respect to patents, copyrights, Confidential Information, trade secrets, trade names, domain names, trade dress, logos, trademarks, service marks, and other similar rights or interests in intellectual property.
1.6 “Purchase Order.” A document in written or electronic form indicating that it is a “purchase order” which incorporates these Terms of Service, if mutually agreed upon and duly executed by the parties. In order to be binding, a “Purchase Order” must comply with the above requirements.
1.7 “Services.” The web services described and specified in the applicable Purchase Order and any updates or upgrades to such services which may be generally released by AlayaCare to its customers from time to time.
1.8 “Site.” Site may refer to any of AlayaCare’s “AlayaCare.com”, or “AlayaCare.ca”, websites, or any white label website through which Customer accesses the Services, including all their respective subdomains present and future, and including but not limited to the AlayaCare Technology.
2. Effects of Terms of Service; Support Services
2.1 The sale of the Services is subject to and governed by the Terms of Service and the terms and conditions of Customer’s Purchase Order, and no other agreement or any other understanding shall be binding on AlayaCare or apply in any manner to the sale of such Services. No modification of the Terms of Service shall be of any force or effect unless signed by an authorized officer of AlayaCare. No specification prepared by Customer relative to a Purchase Order shall be binding on AlayaCare for any purpose unless signed by an authorized officer of AlayaCare.
2.2 Support services provided by AlayaCare to Customer with respect to the AlayaCare Technology will be performed in conformity with the service level agreement available at http://www.alayacare.com/sla. The service level agreement may be amended from time to time by AlayaCare, acting reasonably.
3. Terms of Payment
Fees for software subscriptions and professional services are set out in customer Order Forms. All fees are due net thirty (30) days unless otherwise specified. AlayaCare shall be entitled to change the fees during the term specified in the Order Form (no more than one time per year) and will provide Customer with written notice of any fee changes. Late fees will be subject to interest at rates specified in the AlayaCare invoice and if Customer accounts remain outstanding beyond 90 days, AlayaCare reserves the right to suspend Services availability until Customer payments are in good standing.
4. Proprietary Rights Ownership.
4.1 You acknowledge that: (a) the Services and Site contains proprietary and confidential information that is protected by applicable intellectual property and other laws, and (b) AlayaCare and/or third parties own all right, title and interest in and to the Services and Site and content that may be presented or accessed through the Services and Site, including without limitation all Intellectual Property Rights therein and thereto. You are being granted the limited license right to use the Services as contemplated in your Purchase Order and you hereby acknowledge that no title or ownership in the Services is being transferred or assigned and these Terms of Service should not be construed as a sale of any rights in the Services. All rights not specifically granted under these Terms of Service are reserved to AlayaCare and its licensors. “Intellectual Property Rights” means any and all rights existing from time to time under patent law, copyright law, trade secret law, trademark law, unfair competition law, and any and all other proprietary rights, and any and all applications, renewals, extensions and restorations thereof, now or hereafter in force and effect worldwide.
4.2 You agree that you will not, and will not allow any third party, to (i) copy, sell, license, distribute, transfer, modify, adapt, translate, prepare derivative works from, decompile, reverse engineer, disassemble or otherwise attempt to derive source code from, the Services, Site, or AlayaCare Technology, or content that may be presented or accessed through the Services or Site for any purpose, unless otherwise permitted by AlayaCare; (ii) take any action to circumvent or defeat the security deployed or enforced by any functionality contained in the Services or Site; or (iii) remove, obscure, or alter AlayaCare’s or any third party’s copyright notices, trademarks, or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Services or Site.
4.3 The content, arrangement and layout of the Site and Services including but not limited to the trademarks, photos, logos, videos, audio, images, text (in the form of plain text, HTML, or PDFs) and computer code are proprietary to AlayaCare, either owned or under license, and may not be copied, imitated, reproduced, displayed, distributed, transmitted, decompiled or otherwise used without the express permission of AlayaCare. Any unauthorized use of the content, arrangement or layout of the Services or Site, computer code, images, logos, videos, audio or trademarks found in the Services or Site or any derivative works thereof may violate civil or criminal laws, including but not limited to intellectual property laws, and AlayaCare may take action accordingly.
4.5 If you choose to communicate to AlayaCare suggestions for improvements to the Services or Site (collectively, “Feedback”), AlayaCare shall own all right, title, and interest in and to the Feedback and will be entitled to use the Feedback without restriction. You hereby irrevocably assign all right, title and interest in and to the Feedback to AlayaCare and waive in favor of AlayaCare, its successors and assigns all your moral rights in the Feedback, and agree to provide AlayaCare such assistance as AlayaCare may require to document, perfect, and maintain AlayaCare’ rights to the Feedback. You acknowledge and agree that, by providing any Feedback to AlayaCare, you are not entitled to any compensation or reimbursement of any kind from AlayaCare under any circumstances.
5. Use Restrictions
Customer covenants and agrees that its use of the Services will be in a manner consistent with the Terms of Service and with all applicable laws and regulations, including but not limited to trade secret, copyright, trademark, and export control laws. Without limiting the generality of the foregoing, Customer shall not, nor shall it permit or assist others, (i) to abuse or fraudulently use the Services; (ii) to process or permit to be processed the data of any third party that is not expressly authorized herein to access and use the Services; (iii) to access, alter, or destroy any information of any customer of AlayaCare by any fraudulent means or device, or attempt to do so; or (iv) encumber, lease, rent loan, sublicense, transfer, transport or otherwise distribute the AlayaCare Technology.
Customer shall be solely responsible for acquiring and maintaining technology and procedures for maintaining the security of its link to the Internet. As part of the Services, AlayaCare shall implement reasonable security procedures consistent with prevailing industry standards to protect Customer Data from unauthorized access (the “Security Standard”). Provided that AlayaCare is in compliance with the Security Standard and is not otherwise negligent, the parties agree that AlayaCare shall not, under any circumstances, be held responsible or liable for situations (i) where data or transmissions are accessed by third parties through illegal or illicit means, or (ii) where the data or transmissions are accessed through the exploitation of security gaps, weaknesses, or flaws unknown to AlayaCare at the time or any other matter beyond its control. AlayaCare will promptly report to Customer any unauthorized access to Customer Data promptly upon discovery by AlayaCare, and AlayaCare will use diligent efforts to promptly remedy any breach of security that permitted such unauthorized access. In the event notification to persons included in such Customer Data is required, Customer shall be solely responsible for any and all such notifications at its expense.
7. Monitoring of Customer’s Use
AlayaCare reserves the right to internally monitor Customer’s usage of the Site and the Services. Any use of the Site or the Services by a Customer not specifically permitted under the Terms of Service is strictly prohibited and may result, at AlayaCare’s discretion, in the suspension or termination of any outstanding Purchase Order(s) for such Customer.
8. Mutual Exchange of Confidential Information
The parties anticipate that each may disclose Confidential Information to the other. Accordingly, the parties desire to establish the terms governing the use and protection of Confidential Information one party (“Owner”) may disclose to the other party (“Recipient”).
8.1 Definition of Confidential Information. For purposes hereof, “Confidential Information” means (i) all trade secrets, know how, software, software updates and enhancements, and other financial, business, or technical information of AlayaCare or of any of its Affiliates and contractors that is disclosed by AlayaCare, or on its behalf, in relation to a Purchase Order; (ii) non-public aspects of AlayaCare’s Site and the operation thereof, AlayaCare Technology, and the Services and additional services provided by AlayaCare, and AlayaCare’s business and technical information, and data; and (iii) Customer Data, and non-public aspects of Customer’s technology, computer programs, and business and technical information, and data. In addition, Confidential Information includes information which, although not related to the Services, a Purchase Order or the Terms of Service, is nevertheless disclosed hereunder, and which, in any case, is disclosed by Owner or its Affiliates or contractors to Recipient in a document or other tangible form bearing an appropriate legend indicating its confidential or proprietary nature, or which, if initially disclosed orally or visually is identified as confidential at the time of disclosure and a written summary hereof, also marked with such a legend, is provided to Recipient within fifteen (15) days of the initial disclosure.
8.2 Restrictions on Use and Disclosure. Recipient may use Confidential Information only for the purposes of a Purchase Order and shall protect such Confidential Information from disclosure to others, using the same degree of care used to protect its own proprietary information of like importance, but in any case using no less than a reasonable degree of care. Recipient may disclose Confidential Information received hereunder only as reasonably required to perform its obligations under a Purchase Order and only to its employees who have a need to know for such purposes and who are bound by signed agreements to protect the received Confidential Information from unauthorized use and disclosure.
8.3 Exclusions. The restrictions of the Terms of Service on use and disclosure of Confidential Information shall not apply to information that: (i) is in the possession or control of Recipient at the time of its disclosure hereunder; (ii) is, or becomes, publicly known, through no wrongful act of Recipient; (iii) is received by Recipient from a third party free to disclose it without obligation to Owner, (iv) is independently developed by a party as evidenced by its written and dated records and without any breach of the Terms of Service, including compliance with Section 4; or (v) is the subject of a written permission to disclose provided by Owner. The Recipient may disclose Confidential Information of Owner pursuant to the requirements of a governmental agency or by operation of law, provided that such Recipient gives Owner written notice thereof as soon as practicable and reasonably cooperates with Owner to contest such disclosure.
9. General Skills and Knowledge
Notwithstanding anything to the contrary in the Terms of Service, Customer agrees that AlayaCare is not prohibited from utilizing any skills or knowledge of a general nature acquired during the course of providing the Services, including information publicly known or available or that could reasonably be acquired in similar work performed for another customer of AlayaCare
10. Errors, Defects.
Customer agrees to notify AlayaCare of any non-conformity, error, or defect of the Services promptly after Customer’s discovery of same.
Any tax of any nature including, without limitation, any excise, sales, use, Goods and Services or other similar taxes which AlayaCare may be required to pay, to collect or to reimburse to others, by reason of the manufacture, ownership, use or sale of any product sold or service provided by AlayaCare hereunder shall be the sole responsibility of Customer and shall be added to the amount to be paid hereunder, and specified in the Purchase Order.
12. Limits of Contract
Only the Services specifically described in a Purchase Order are subject to the Terms of Service.
13. Technical Data; Use of Anonymized Data and Privacy
13.1 All performance data relied on by AlayaCare for the provision of the Services are based upon information furnished by Customer in accordance with its requirements and AlayaCare assumes no responsibility for the accuracy of such information.
13.2 Customer recognizes and agrees that AlayaCare will collect Customer Data information in order to operate effectively as well as to help provide updates and additional functionalities to the AlayaCare Technology. Some of Customer Data will be provided directly by Customer, other types of Customer Data are collected by observing how Customer will interact with the AlayaCare Technology. AlayaCare also collects information that may be available from other sources and may be combined with the data collected in connection with this Agreement.
13.3 AlayaCare may use anonymized and aggregated information gathered in connection with this Agreement and Customer Data it collects to improve the quality of the AlayaCare Technology and for marketing of the AlayaCare Technology. This aggregated information is not associated with any individual account and will not identify Customer or any of its customers. AlayaCare will not disclose any Customer Data that is not anonymized.
14. Force Majeure
For all purposes hereof, force majeure includes any act of God, war, mobilization, governmental regulation, strike, lockout, drought, flood, total or partial fire, obstruction of navigation, loss, damage or detention in transit, defective materials or delays by shippers, technological or infrastructure attack or degradation, or other contingences or causes beyond AlayaCare’s control which might prevent the provision of, shipment or delivery of Services covered hereby. Performance of AlayaCare’s obligations may be suspended pending force majeure, without AlayaCare being responsible to Customer for any damages or losses resulting from such suspension.
15. Customer Representations & Warranties
15.1 Customer represents, warrants and covenants that the performance of its obligations under the Terms of Service and the use of the Services (by Customer and its Authorized Users) will not violate any applicable laws or regulations.
15.2 Customer represents, warrants and covenants that the acceptance and performance of the Terms of Service: (i) is within its corporate powers; (ii) has been duly authorized by all necessary corporate action; and (iii) does not and shall not contravene or constitute a default under, and is not and shall not be inconsistent with, any judgment decree or other, or any contract, agreement, or other undertaking, applicable to Customer.
15.3 Customer acknowledges that (i) AlayaCare does not monitor the content of the information passing through the Services for purposes of verifying accuracy or legal compliance, and (ii) Customer will use commercially reasonable efforts to ensure that the information it and its Authorized Users transmit thereby complies with all applicable laws and regulations, whether now in existence or hereafter enacted and in force.
15.4 In the event of any breach by Customer of any of the foregoing representations or warranties, in addition to any other remedies available at law or in equity, if the breach is not cured by Customer within 10 days of Customer’s receipt of written notice of the breach from AlayaCare, AlayaCare will have the right to suspend the Services until such breach is cured.
16. Limited Warranty
AlayaCare represents and warrants that the Services will: (i) conform to all material operational features as described in the applicable Purchase Order, and (ii) be free of errors and defects that materially affect the performance of such features (the “Limited Warranty”), provided that Customer notifies AlayaCare, in writing, of any non-conformity, error, or defect. In addition to any other remedies available at law or equity, Customer’s remedy for breach of the Limited Warranty shall be correction of non-conforming Services at AlayaCare’s expense.
17. Warranty Disclaimers.
EXCEPT FOR THE LIMITED WARRANTY PROVIDED ABOVE, NEITHER ALAYACARE NOR ANY OF ITS SUPPLIERS OR RESELLERS, AS APPLICABLE, MAKES ANY WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, AND ALAYACARE AND ITS SUPPLIERS SPECIFICALLY DISCLAIM THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, AND ALL WARRANTIES ARISING FROM ANY COURSE OF DEALING OR PERFORMANCE OR USUAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW DISCLAIMERS OF IMPLIED WARRANTIES, SO THE ABOVE LIMITATION MAY NOT APPLY. CUSTOMER ACKNOWLEDGES THAT NO REPRESENTATIONS OTHER THAN THOSE CONTAINED IN THE TERMS OF SERVICE HAVE BEEN MADE RESPECTING THE SERVICES, AND THAT CUSTOMER HAS NOT RELIED ON ANY REPRESENTATION NOT EXPRESSLY SET OUT IN THE TERMS OF SERVICE. ALAYACARE DOES NOT WARRANT THAT THE SERVICES OR SITE WILL MEET CUSTOMER’S REQUIREMENTS, THAT THE SERVICES OR SITE WILL OPERATE IN THE COMBINATIONS WHICH CUSTOMER MAY SELECT FOR USE, OR THAT THE OPERATION OF THE SERVICES OR SITE WILL BE UNINTERRUPTED, OR ERROR-FREE. FURTHER, CUSTOMER ACKNOWLEDGES AND AGREES THAT ALAYACARE HAS NO CONTROL OVER THE INTERNET, AND THAT ALAYACARE IS NOT LIABLE FOR THE DISCONTINUANCE OF OPERATION OF ANY PORTION OF THE INTERNET OR POSSIBLE REGULATION OF THE INTERNET WHICH MIGHT RESTRICT OR PROHIBIT THE OPERATION OF THE SERVICES.
18. Disclaimer of Actions of Third Parties
AlayaCare does not and cannot control the flow of data to or from AlayaCare’s Technology and other portions of the Internet. Such flow of data depends on the performance of Internet services provided or controlled by third parties. At times, actions or inactions of such third parties can impair or disrupt customer’s connections to the Internet (or portions thereof). Although AlayaCare will use commercially reasonable efforts to take all actions it deems appropriate to remedy and avoid such events, AlayaCare cannot guarantee that such events will not occur. ALAYACARE DISCLAIMS ANY AND ALL LIABILITY RESULTING FROM OR RELATED TO THE PERFORMANCE OR NON-PERFORMANCE OF INTERNET SERVICES PROVIDED OR CONTROLLED BY THIRD PARTIES WHICH ARE NOT ALAYACARE’S SUBCONTRACTORS.
19.1 AlayaCare will indemnify, defend and hold harmless Customer and its Affiliates from and against any lawsuit, liabilities, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of a third party claim made against Customer that the AlayaCare Technology or Services infringe on any intellectual property right of a third party; provided, however, that AlayaCare is notified in writing of such claim promptly after such claim is made upon Customer. AlayaCare shall have the right to control any defense of the claim. In no event shall Customer settle any such claim without AlayaCare’s prior written approval. AlayaCare shall have no liability or obligation if the claim arises from (i) any alteration or modification to the AlayaCare Technology or Services by Customer, (ii) any combination of the AlayaCare Technology or Services by Customer with other programs or data not furnished by AlayaCare, or (iii) any use by Customer of the AlayaCare Technology or Services that is prohibited by the Terms of Service or otherwise outside the scope of use for which the AlayaCare Technology or Services are intended.
19.2 Each party will indemnify, defend and hold harmless the other party and its Affiliates from and against any lawsuit, liability, loss, cost or expense (including, but not limited to, reasonable attorneys’ fees and costs of suit) arising out of, related to, or in connection with the acts, omissions, performance (or failure to perform) of the first party, its subcontractors, or their respective employees or agents, to the extent the lawsuit, liability, loss costs or expense results from the negligence, willful misconduct or other fault of the first party, its subcontractors or their respective employees or agents.
20. Options for Infringement Claims.
If any party is enjoined from using the AlayaCare Technology, or if AlayaCare believes that the AlayaCare Technology may become the subject of a claim of intellectual property infringement, AlayaCare, at its option and expense, may: (i) procure the right for Customer to continue to use the Services; (ii) replace or modify the AlayaCare Technology so as to make it non-infringing; provided, however, that the Services continue to conform to the descriptions and/or specifications provided in the applicable Purchase Order; or (iii) in addition to any other remedies available in law or equity, terminate any outstanding Purchase Orders, in which case AlayaCare shall refund to Customer any and all subscription fees paid by Customer for those Services not provided by AlayaCare and provide, at Customer’s request and free of charge, Customer Data in a database document format. This Section 20 and the preceding Section 19 set forth the liability of AlayaCare to Customer for any infringement by the AlayaCare Technology or Services of any intellectual property right of any third party.
21. Limitation of Liability
THE LIABILITY OF ALAYACARE WILL NOT UNDER ANY CIRCUMSTANCES EXCEED THE TOTAL FEES PAID BY THE CUSTOMER FOR THE USE OF THE SERVICES IN THE TWELVE (12)-MONTH PERIOD LEADING UP TO THE DATE ANY SUCH LIABILITY ARISES AND IN NO EVENT SHALL ALAYACARE BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, EXEMPLARY OR CONTINGENT DAMAGES OR COMMERCIAL LOSS OF ANY KIND (INCLUDING DAMAGES FOR LOSS OF PROFITS) ALLEGEDLY SUSTAINED BY CUSTOMER.
22. Term and Termination
22.1 These Terms of Service begin to apply on the effective date of a Purchase Order and cease at the end of the initial subscription term set out in the Purchase Order (the “Initial Subscription Term”). At the end of the Subscription Term, these Terms will automatically renew for period of time equal to the Initial Subscription Term (a “Renewal Term”, and together with the “Initial Subscription Term”, the “Subscription Term”), unless you notify us in writing at least sixty (60) days before the end of the Initial Subscription Term or a Renewal Term of your intention to terminate these Terms of Service. Any such termination will be effective on the last day of the Subscription Term and you will pay for the Services until the end of the Subscription Term, regardless of when you provided notice.
22.2 In the event of a breach of these Terms of Service by either party that remains uncured for thirty (30) days the non-breaching party may immediately terminate these Terms of Service. Any such termination of these Terms of Service will be without prejudice to any other remedies that either party may have against the other party arising out of such breach and will not affect any rights or obligations of either party arising out of these Terms of Service prior to such termination.
22.3 If AlayaCare determines in its sole discretion that it is no longer feasible to support the Services, AlayaCare may terminate these Terms of Service for end of life at any time by providing 180 days written notice to Customer.
22.5 So long as you have paid us all outstanding fees, upon your written request made within thirty (30) days after the termination of these Terms of Service, we will:
deliver to you, as applicable, any Customer Data in our possession or control; or make available to you for download a file of Customer Data in a generally available format, as determined by us, acting reasonably.
After such thirty-(30-)day period, we will have no obligation to maintain or provide any Customer Data and we will, unless legally prohibited, delete or destroy all Customer Data in our systems or otherwise in our possession or under our control. At your written request, an officer of AlayaCare will certify the delivery of and/or deletion or destruction of Customer Data following termination.
Customer shall not assign or transfer its rights or obligations under the Terms of Service without the written consent of AlayaCare and any assignment made without such consent shall be null and void.
24. No Partnership
No agency, partnership, joint venture, or employment is created between Customer and AlayaCare as a result of the Terms of Service, and Customer does not have any authority of any kind to bind AlayaCare in any respect whatsoever.
25. Governing Law, Jurisdiction and Invalidity
Any provision hereof which is contrary to law will not invalidate any other provision thereof. The foregoing and any applicable Purchase Order set forth the sole and entire agreement between the parties with respect to the Services supplied hereunder. These Terms of Service shall be governed by and interpreted in accordance with the laws of the province of Quebec and the federal laws of Canada applicable therein, excluding any rules of private international law or the conflict of laws which would lead to the application of any other laws. Customer agrees that any action at law or in equity arising out of or relating to the Terms of Service or your use of the Services shall be filed and adjudicated only in the federal or provincial courts located in the Province of Québec (District of Montreal), and Customer hereby irrevocably and unconditionally consents and attorns to the exclusive jurisdiction and venue of such courts over any suit, action or proceeding arising out of the Terms of Service or your relationship with AlayaCare. The foregoing choice of jurisdiction and venue shall not prevent AlayaCare from seeking injunctive relief with respect to a violation of intellectual property rights, enforcement or recognition of any award or order in any appropriate jurisdiction.
AlayaCare agrees to maintain the following insurance, with the following minimum limits: (a) General Civil Liability insurance with a minimum limit of $5,000,000 CAD per occurrence; and (b) Information Technology Errors and Omissions insurance with a minimum limit of $5,000,000 CAD per claim.
The parties confirm that it is their wish that the Terms of Service, as well as any other documents relating to the Terms of Service, including notices, schedules and authorizations have been and shall be drawn up in the English language only. Les signataires confirment leur volonté que les présentes Conditions de service, de même que tous les documents s’y rattachant, y compris tout avis, annexe et autorisation, soient rédigés en anglais seulement.
28. Miscellaneous Provisions
If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavour to give effect to the parties’ intentions as reflected in the provision, and the other provisions of the Terms of Service shall remain in full force and effect. The section titles in the Terms of Service are for convenience only and have no legal or contractual effect.
29. Change Orders Initiated by Customer
Customer's project manager may at any time, without invalidating this Agreement or a Statement of Work that has been accepted by AlayaCare, direct AlayaCare to prepare a draft change order that describes any scope-related changes to the Work Order that Customer deems desirable, including changes to the description of the Project, any functional or technical requirements or acceptance criteria, or any other scope-related additions, deletions or revisions. Upon receipt of those directions, provided they don't materially change the nature of the Project or exceed AlayaCare’s capacity to perform, AlayaCare will promptly prepare and submit to Customer's project manager a draft change order reflecting Customer's requested changes and proposing reasonable adjustments, if any, to the work schedule and delivery dates for each deliverable, the date by which each milestone is to be completed, if applicable, and/or the estimate or fixed price for the Statement of Work, as applicable.
30. Change Orders Initiated by AlayaCare.
If, during the course of completing a project on a fixed price basis, AlayaCare reasonably determines that its costs, or the time necessary to complete the Project, will be significantly greater as a result of (i) any delays on the part of Customer, or (ii) the failure of any of the assumptions and conditions described in the SOW, and if that increase cannot be mitigated through the exercise of reasonable efforts at no significant additional cost to AlayaCare, then AlayaCare may prepare and submit to Customer a draft change order describing Customer's delay or the failed assumption or condition, and proposing reasonable adjustments to any delivery dates for those deliverables and the Services, the date by which each milestone is to be completed, if applicable, and/or the fixed price for that SOW.
AlayaCare will bear all of its own costs in completing the Project, including labor, overhead, and supplies, except that if a performances of the Services requires AlayaCare employee (the “Resource”) to be on site at Customer, then, upon AlayaCare’s submission of proper documentation and receipts, AlayaCare may invoice Customer for the Resources' travel-related expenses.
AlayaCare reserves the right to monitor and adjust subscription fees based on platform usage.