Gradient MSP Inc (“Gradient”) provides a Software as a Service MSP management platform to MSP providers (“Service”). The Service is provided on a subscription basis as further described in this Agreement and on the Website under specific subscription plans offered by Gradient from time to time. The Services are provided through the website https://usegradient.com (the “Website”). This Agreement applies to anyone (“You”/”Customer”) who subscribes for or otherwise uses the Services.
THESE TERMS (WHICH TOGETHER WITH THE ORDER FORM ARE COLLECTIVELY REFERRED TO AS THE “AGREEMENT”) CONTAIN IMPORTANT LIMITATIONS ON REPRESENTATIONS, WARRANTIES, CONDITIONS, REMEDIES AND LIABILITIES THAT ARE APPLICABLE TO THE SERVICES SO YOU SHOULD READ THEM CAREFULLY BEFORE USING THE SERVICES. EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT, YOU AGREE TO THE TERMS HEREOF. IF YOU ARE AN AGENT OR EMPLOYEE OF AN ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER. IF YOU DO NOT ACCEPT THESE TERMS, THEN DO NOT USE THE WEBSITE OR ANY OF ITS CONTENT OR SERVICES.
For the purposes of this Agreement, in addition to the capitalized terms defined elsewhere in this Agreement, the following terms shall have the meanings ascribed to them as follows:
“Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. “Control”, for purposes of this Agreement, means direct or indirect ownership or control of more than fifty percent (50%) of the voting interests of the subject entity;
“Customer Data” means all electronic data or information submitted by Customer and/or its Users to the Service;
“Fee” means the fees for the Services as specified in the applicable Order Form, if any;
“Gradient Analytics and Recommendations” means any analytics or recommendations or similar as may be suggested or made available by Gradient to Customer from time to time, including without limitation any business metric performance analytics and recommendations, support ticketing analytics and recommendations, and service provider ticketing analytics and recommendations.
“Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs;
“Service” has the meaning given to it above;
“Order Form” means an order form executed or otherwise accepted by the each of parties that specifies the Service, initial term, Fees, and any other additional commercial terms agreed by the parties, and which incorporates this Agreement;
“Term” has the meaning ascribed to that term in Section 10.1;
“User” means an individual or entity who is authorized by Customer to use the Service; and
“Website” means Gradient’s website at usegradient.com
2. Grant of License.
2.1 Provision of Service. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Gradient shall make the Service available to Customer and its Users for Customer’s internal business use during the Term. Customer’s right to use the Service during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s).
2.2 Analytics and Recommendations. Conditioned on the provisions in this Section 2 and the other terms and conditions of this Agreement including payment of the applicable fees, Gradient may make certain Gradient Analytics and Recommendations available to Customer and its Users for Customer’s internal business use during the Term on an “as-is” basis. Customer’s right to use the Gradient Analytics and Recommendations during the Term shall be in accordance with any additional conditions, restrictions or parameters specified in the applicable Order Form(s). Gradient Analytics and Recommendations are solely recommendations by Gradient, and do not constitute professional, regulatory, or other advice nor do they purport to contain all critical information that should be relied on by Customer in its dealings with its clients. It is solely up to Customer to satisfy itself, using its own professional expertise, whether its reliance on the Gradient Analytics and Recommendations meet its needs, those of its clients, and otherwise satisfy any contractual, support regulatory or other requirements that may be binding upon Customer or its Users.
2.3 User Accounts. User accounts are for use by designated Users and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Service.
3. Use of the Service.
3.1 Gradient Responsibilities. Gradient shall: (i) follow good industry practice to maintain the security and integrity of the Service and the Customer Data; (ii) provide basic support to Customer's Users, at no additional charge; and (iii) use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime (of which Gradient shall give at least eight (8) hours’ notice via the Service and which Gradient shall schedule to the extent reasonably practicable during the weekend hours from 6:00 p.m. Mountain Time Friday to 3:00 a.m. Mountain Time Monday); or (b) any unavailability caused by circumstances beyond Gradient's reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Gradient employees), computer, telecommunications, Internet service provider or hosting facility failures or delays involving equipment, software or power systems not within Gradient’s possession or reasonable control, and denial of service attacks.
3.2 Customer Responsibilities. Customer is responsible for all activities that occur in User accounts and for Users’ compliance with this Agreement. Customer shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data; (ii) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Service, and notify Gradient promptly of any such unauthorized access or use; and (iii) comply with all applicable local, provincial, state, federal and foreign laws in using the Service. Customer is solely responsible for its use and implementation of any Gradient Analytics and Recommendations, and is solely responsible for any decisions that it may make or acts or omission that it may or may not take in reliance on any Gradient Analytics and Recommendations, including without limitation, triaging, and responding to client support requests, vendor selection and otherwise.
3.3 Use Guidelines. Customer shall not: (i) license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any third party; (ii) use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (iii) use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights; (iv) use the Service to send or store Malicious Code; (v) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (vi) attempt to gain unauthorized access to the Service or its related systems or networks.
3.4 Publicity. Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
3.5 Integrations. The Service integrates with other third-party applications and platform as listed on the Website from time to time (“Integrated Platforms”). As part of such integrations, the Service will (to the extent permitted by Customer) import and export data from Integrated Platforms, including without limitation information about Customer’s clients, managed services platforms, support queries, their addresses, financial information, and similar related data (“Integrated Data”). By granting the Service access rights to any account Customer may hold with an Integrated Platform, Customer (i) grants Gradient a limited, non-exclusive license to access. copy, modify, use, and create derivatives from such Integrated Data for the purpose of facilitating Customer’s use of the Services; and (ii) acknowledges and agrees that modifications to data in the Service may modify data on the Integrated Platforms. Customer acknowledges and agrees that the Integrated Platforms are not under Gradient’s control, and accordingly Gradient does not warrant or support any Integrated Platform. It is Customer’s sole discretion whether to enable an integration with an Integrated Platform. Any use of an Integrated Platform is solely between customer and the applicable third-party provider. If an integration with an Integrated Platform is enabled, Gradient will not be responsible for any use, disclosure, modification, or deletion of Customer Data that is transmitted to, or accessed by, an Integrated Platform, or use or misuse by the third-party provider of such Customer Data.
3.6 Third Party Products and Services. Gradient or third parties may list, link to, recommend or make available (for example, through a list of partners or recommended providers, a marketplace or otherwise) third-party products or services (“Third Party Applications”) and implementation and other consulting services. Any acquisition by Customer of such products or services, and any exchange of data between Customer and any third-party provider, product or service is solely between Customer and the applicable third-party provider. Gradient does not warrant or support Third Party Applications or other third-party products or services, whether or not they are designated by Gradient as “certified” or otherwise, unless expressly provided otherwise in an Order Form. Gradient is not responsible for any disclosure, modification or deletion of Customer Data resulting from access by such Third-Party Application or its provider.
3.7 Removal of Customer Data and Third-Party Applications. If Customer receives notice that Customer Data or a Third-Party Application must be removed, modified and/or disabled to avoid violating applicable law, third-party rights, Customer will promptly do so. If Customer does not take required action in accordance with the above, or if in Gradient’s judgment continued violation is likely to reoccur, Gradient may disable the applicable Customer Data, Service and/or Third-Party Application. If requested by Gradient, Customer shall confirm such deletion and discontinuance of use in writing and Gradient shall be authorized to provide a copy of such confirmation to any such third-party claimant or governmental authority, as applicable. In addition, if Gradient is required by any third-party rights holder to remove Content, or receives information that Content provided to Customer may violate applicable law or third-party rights, Gradient may discontinue Customer’s access to Content through the Services.
4. Fees and Payment.
4.1 Fees. In consideration for the receipt of the Service, Customer shall pay Gradient the Fees, all as specified in the applicable Order Form. All amounts are payable in the currency specified in the applicable Order Form or, if not so specified, in US Dollars. Fees may be updated by Gradient from time to time on not less than 30 days’ prior written notice to Customer.
4.2 Invoicing and Payment. Fees for the Service will be invoiced on a monthly basis unless otherwise specified in the applicable Order Form. Customer will provide Gradient with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Gradient. If Customer provides credit card information to Gradient, Customer authorizes Gradient to charge such credit card for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s). Such charges shall be made in advance, either monthly or in accordance with any different billing frequency stated in the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, Gradient will invoice Customer in advance and otherwise in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced fees are due net 30 days from the invoice date. Customer is responsible for maintaining complete and accurate billing and contact information with Gradient.
4.3 Overdue Payments. Any payment not received from Customer by the due date may accrue (except with respect to charges then under reasonable and good faith dispute), at Gradient's discretion, late charges at the rate of 1.0% of the outstanding balance per month (12.67% per annum), or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid.
4.4 Taxes. Unless otherwise stated, Gradient's fees do not include any direct or indirect local, state, provincial, federal, or foreign taxes, levies, duties, or similar governmental assessments of any nature, including value-added, goods and services, harmonized, use or withholding taxes (collectively, "Taxes"). Customer is responsible for paying all Taxes associated with its purchases hereunder, excluding taxes based on Gradient's net income or property. If Gradient has the legal obligation to pay or collect Taxes for which Customer is responsible under this section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Gradient with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.5 Audit Rights. Gradient shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer’s compliance with this Agreement.
4.6 Suspension of Service. If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Gradient reserves the right to suspend the Service provided to Customer, without liability to Customer, until such amounts are paid in full.
5. Proprietary Rights.
5.1 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Gradient reserves all rights, title, and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth in this Agreement.
5.2 Restrictions. Customer shall not (and shall not allow any third party to): (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other timing or use restrictions that are built into the Service; (c) remove any proprietary notices, labels, or marks from the Service or User Guide; (d) frame or mirror any content forming part of the Service; or (e) access the Service in order to (i) build a competitive product or service, or (ii) copy any ideas, features, functions or graphics of the Service.
5.3 Customer Data. As between Gradient and Customer, Customer exclusively owns all rights, title, and interest in and to all Customer Data. Customer Data is deemed Customer’s Confidential Information under this Agreement. Gradient shall not access Customer's User accounts, including Customer Data, except to respond to service or technical problems or at Customer's request or as necessary for the operation of the Service or billing. Customer hereby grants Gradient a non-exclusive, non-transferable (except in connection with the permitted assignment of this Agreement), irrevocable, worldwide, royalty-free, fully paid-up license for the Term (and for thirty (30) days thereafter) to process, store and otherwise use the Customer Data as reasonably required to provide the Service. Gradient may create aggregated or anonymized statistical analytics, data and machine learnings arising from Customer’s and its User’s use of the Service and Customer Data processed through the Service (“Aggregated Data”), which Aggregated Data shall not include any underlying Customer Data, nor shall it otherwise be capable of referencing back to Customer or its Users. As between Customer and Gradient, Gradient shall own all rights to such Aggregated Statistics free from encumbrance.
5.4 Suggestions. Gradient shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service and/or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the Service.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential and proprietary information of a party (the “Disclosing Party”) disclosed to the other party (the “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, including the terms and conditions of this Agreement (including pricing and other terms reflected in all Order Forms hereunder), the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that: (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (iii) was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party; or (iv) is received from a third party without breach of any obligation owed to the Disclosing Party.
6.2 Confidentiality. The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
6.3 Protection. Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
6.4 Compelled Disclosure. If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
6.5 Remedies. If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections in this Agreement, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
7. Warranties and Disclaimers.
7.1 Warranties. Each party warrants that it has the legal power to enter into this Agreement. Gradient warrants that (i) it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof; (ii) the Service shall not infringe on third party’s intellectual property rights; and (iii) the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User).
7.2 Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN SECTION 7.1, GRADIENT MAKES NO REPRESENTATIONS AND PROVIDES NO WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
8. Mutual Indemnification.
8.1 Indemnification by Gradient. Subject to the terms and conditions of this Agreement, Gradient shall, at its own expense, defend Customer in any action, suit or proceeding by a third party alleging that the Service infringes or misappropriates any patent, trademark, trade secret, copyright or any other intellectual property rights of such third party (an “IP Claim”) and shall indemnify and hold Customer harmless from and against any settlement amounts agreed in writing by Gradient and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against Customer by a court or tribunal of competent jurisdiction in such IP Claim. As conditions for such defense and indemnification by Gradient, (i) Customer shall notify Gradient promptly in writing upon becoming aware of all pending IP Claims; (ii) Customer shall give Gradient sole control of the defense and settlement of such IP Claims; (iii) Customer shall cooperate fully with Gradient in the defense or settlement of such IP Claims; and (iv) Customer shall not settle any IP Claims without Gradient’s written consent, or compromise the defense of any such IP Claims or make any admissions in respect thereto.
8.2 Mitigation. If (a) Gradient becomes aware of an actual or potential IP Claim, or (b) Customer provides Gradient with notice of an actual or potential IP Claim, Gradient may (or in the case of an injunction against Customer, shall), at Gradient’s sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer’s use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any pre-paid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to Gradient.
8.3 Exclusions. The obligations in Sections 8.1 and 8.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by Gradient with other products, software or services not provided by Gradient; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
8.4 Indemnification by Customer. Subject to the terms and conditions of this Agreement, Customer shall, at its own expense, defend Gradient, its Affiliates and its and their directors, officers, employees and agents (the “Gradient Indemnitees”) in any action, suit or proceeding brought by a third party against any of the Gradient Indemnitees alleging that the Customer Data, or Customer's use of the Service in violation of this Agreement, infringes or misappropriates the intellectual property or other rights of, or has otherwise harmed, a third party (“Customer Claims”) and shall indemnify and hold the Gradient Indemnitees harmless from and against any settlement amounts agreed in writing by Customer and/or any losses, damages, expenses or costs (including but not limited to reasonable attorneys' fees) awarded to such third party against any of the Gradient Indemnitees by a court or tribunal of competent jurisdiction in any such Customer Claim. As conditions for such defense and indemnification by Customer, (i) Gradient shall notify Customer promptly in writing upon becoming aware of all pending Customer Claims; (ii) Gradient shall give Customer sole control of the defense and settlement of such Customer Claims; (iii) Gradient shall cooperate fully with Customer in the defense or settlement of such Customer Claims; and (iv) Gradient shall not settle any Customer Claims without Customer’s written consent, or compromise the defense of any such Customer Claims or make any admissions in respect thereto.
9. Limitation of Liability.
9.1 Limitation of Liability. IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
9.2 Exclusion of Consequential and Related Damages. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
9.3 Certain Damages Not Excluded. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.
9.4 Beneficiaries. Every right, exemption from liability, release, defense, immunity and waiver of whatsoever nature applicable to a party under this Agreement shall also be available and shall extend to benefit and to protect such party’s Affiliates, subcontractors, agents, licensors, suppliers, directors and/or employees and for such purposes such party is or shall be deemed to be acting as agent or trustee on behalf of and for the benefit of such companies and persons in respect to such rights, exemptions, releases, defenses, immunities and waivers.
10. Term and Termination.
10.1 Term of Agreement. This Agreement shall commence as of the date of the Order Form (“Effective Date”) and unless otherwise specified in the Order shall continue in effect for an initial term of one (1) month (such initial term referred to in this Agreement as the “Initial Term”). Thereafter, the term of the Agreement shall be automatically renewed monthly on the anniversary of the Effective Date for additional one (1) month renewal terms (any such subsequent renewal terms referred to in this Agreement as a “Renewal Term”), unless either party gives written notice of non-renewal to the other party at least thirty (30) days prior to the end of the Initial Term or any Renewal Term hereof. Collectively, the Initial Term and any subsequent Renewal Terms shall constitute the “Term”
10.2 Termination for Cause. A party may terminate this Agreement for cause: (i) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation, or assignment for the benefit of creditors. Upon any termination for cause by Customer, Gradient shall refund Customer any prepaid fees for any periods after the termination of the Agreement.
10.3 Outstanding Fees. Subject to section 10.2, termination or expiration of this Agreement shall not relieve Customer of the obligation to pay any fees accrued or payable to Gradient prior to the effective date of termination or expiration of this Agreement.
10.4 Surviving Provisions. The following provisions shall survive any termination or expiration of this Agreement: Sections 4 through 11.
11. General Provisions.
11.1 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary, or employment relationship between the parties.
11.2 No Third-Party Beneficiaries. Except as expressly provided in this Agreement, there are no third-party beneficiaries to this Agreement.
11.3 Notices. All notices under this Agreement shall be in writing and shall be deemed to have been given upon: (i) personal delivery; (ii) the second business day after mailing; (iii) the second business day after sending by confirmed facsimile; or (iv) the second business day after sending by email. Notices to Gradient shall be addressed to the attention of the Legal Department. Notices to Customer shall be addressed to Customer’s signatory of this Agreement unless otherwise designated below.
11.4 Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
11.5 Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
11.6 Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to an Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its business, stock, or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
11.7 Governing Law. This Agreement shall be governed by the laws of the Province of Alberta, Canada, without regard to its conflict of law principles. No choice of laws rules of any jurisdiction shall apply to this Agreement. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
11.8 Venue; Waiver of Jury Trial. The provincial and federal courts located in Calgary, Alberta, Canada, shall have exclusive jurisdiction to adjudicate any dispute arising out of or relating to this Agreement. Each party hereby consents to the exclusive jurisdiction of such courts. Each party also hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
11.9 Force Majeure. Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labour problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving equipment, software or power systems not within a party’s possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance.
11.10 Export. Customer acknowledges and agrees that the Service may be subject to export and import controls under the regulations of Canada, the United States and other countries, and Customer shall comply with all export and import control regulations of such countries. Customer shall not use the Service for any purposes prohibited by export laws, including, without limitation, nuclear, chemical, or biological weapons proliferation. Customer shall be responsible for procuring all required permissions for any subsequent export, import or use of the Service.
11.11 Entire Agreement. This Agreement, including all Order Forms, constitutes the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals, or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in a Customer purchase order or in any other Customer order documentation shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
Last Updated: 13 April 2021