Terms and Conditions

ENTO

Ento Software Inc.

 


TERMS OF SERVICE

INTRODUCTION

  1. Ento is an online workforce management cloud application which effectively manages staff onboarding, rostering, leave, timesheets, award interpretation and other HR processes. These Terms of Service are prepared in accordance with Canadian laws, but Ento can be used by anyone, anywhere.

     

  2. In these Terms of Service, the “Important Terms” mostly deal with using Ento, and the “General Conditions” set out the legal basis on which Ento is provided. These Terms of Service must be accepted in order to use Ento.  The Company treats the confidentiality of our Customer’s information seriously, and handles all personal information in accordance with Canadian privacy laws. Simply, we protect our Customers’ information, not exploit it. 

 

IMPORTANT TERMS

A KEY TERMS

A.1 The following terms are used regularly throughout these Terms of Service and have a particular meaning:

(a) Account means a registered Customer account with Ento.

(b) Account Balance means the credit (if any) of an Account in which Fees are deducted.

(c) Active Users mean, in any given month, the total Staff Users within at least one module the Customer has switched on.

(d) Agreement means the agreement formed in accordance with these Terms of Service between the Company and the Customer.

(e) Application means the Ento SaaS application accessible via login through the Site, Android App or iPhone App.

(f) API means the Ento application programming interface as released and updated from time-to-time by the Company.

(g) Company means Ento Software Inc.

(h) Customer means the entity that Ento is licensed to under this Agreement (which if in doubt shall be the named Account holder).

(i) Customer Data means all information including Personal Information, data, code, documents, Intellectual Property and other such materials that belong to the Customer.

(j) Ento means the Company’s suite of modules, tools, applications and services, known together as “Ento”, licensed to the Customer under this Agreement.

(k) Fee means any fees payable to the Company for use of Ento, and includes the Subscription Fee and SMS Fee.

(l) Privacy Law means all laws, regulations, and procedures, as amended, relating to the collection, use, disclosure, access, processing, security, confidentiality, or privacy of Personal Information, to the extent applicable to each respective Party in connection with this Agreement;

(m) Privacy Policy means the Company’s privacy policy as updated from time-to-time, accessible from here: https://ento.com/au/privacy-policy.

(n) Site means the website found at https://canada.ento.com/.

(o) SMS means the short message service as operated by Ento. 

(p) SMS Fee means the “per SMS” fee charged per standard 160-character message sent from an Account.

(q) Staff User means any user of Ento authorised by the Customer, including (without limitation) co-managers, sub-managers and employees.

(r) Subscription Fee means the Fees charged for use of and access to Ento as set out in this Agreement, including Schedule 1. 

(s) Third Party Services means any software, hardware or other systems that enable the transmission of data to and from Ento.

(t) User means either or both of a Customer and a Staff User, as the use of the term in its context implies.

B AGREEMENT

B.1 The license granted under this Agreement shall be ongoing until terminated in accordance with the terms of this Agreement.

B.2 The Customer agrees:

(a) to use Ento in accordance with the terms of this Agreement; 

(b) if creating a Staff User on Ento, that it is authorised to establish, maintain and pay for the Account for the Staff User;

B.3 The Customer confirms that each Staff User registered to use Ento will be deemed to enter into and comply with the terms of this Agreement by using Ento. The Customer acknowledges that it can control the permissions of each Staff User through its Account settings.

B.4 Subject to the provisions relating to breach of this Agreement in clause 16 of the General Conditions, the Customer may by written notice terminate this Agreement immediately by canceling its subscription and ceasing to use Ento. Upon termination, the Customer acknowledges that it is not entitled to any refund of amounts paid to Ento. No pro-rata refunds are offered for terminated accounts.

C PAYING FOR ENTO

C.1 Fees.

(a) The primary Fee to use Ento is the Subscription Fee, which is payable monthly in advance (after any free trial period has expired) and calculated on the number of Active Users the previous month.

(b) The SMS Fee applies to any SMS sent from an Account and is deductable from the Account Balance immediately upon sending.

(c) The Company reserves the right to introduce or change any Fees from time-to-time without notice. Any new or changed Fees will commence to apply at the next billing period

(d) If a Customer does not accept a change to any Fees, then it can terminate its Account in accordance with this Agreement.

(e) The Company may charge any Fee on a pro rata basis for any billing period that is not a whole month (such as the first month).

C.2 Invoices.

(a) The Customer shall receive an invoice for each payment processed into its Account.

(b) The Customer can access all invoices generated by the Company against its Account in the billing section.

C.3 Currency.

All amounts set out in this Agreement will be in Canadian dollars unless agreed otherwise between the parties. 

C.4 Taxes.

Taxes is applicable to any Fees charged by the Company to the Customer. Unless expressed otherwise, all Fees shall be deemed exclusive of Taxes. The Company will provide the Customer with an invoice for any payments.

C.5 Refunds.

No refunds are offered other than as required by law.

C.6 Account Balance

(a) All Fees are deducted from the Account Balance, which can be viewed in the billing section of an Account.

(b) If the Company believes that the Customer’s Account Balance will not be sufficient to cover its upcoming Subscription Fee, the Company will send reminder emails to the Customer to make a payment into its Account.

(c) If a Customer’s Account Balance continues to be insufficient to cover its next Subscription Fee for 4 days into its new billing cycle, the Account will expire and access will be limited to the billing section of the Account.

(d) In the event of (c), the User agrees that the Company shall not be responsible or liable in any way for:

i. Interruptions to the availability of Ento; and

ii. Loss of Customer Data.

D USING ENTO

D.1 Customer Access.

(a) To access Ento, each Customer must register with Ento via the Application with a valid email address.

(b) When registering, each Customer must provide true and accurate information and agree to update that information in order to ensure that it is current, including for any Staff User that it registers under its Account.

D.2 Staff User Access.

(a) To access Ento, each Staff User must login using the email address or mobile number that is registered under a Customer Account.

(b) A Staff User’s access to and use of Ento may be restricted at the discretion of the Customer that authorises that Staff User’s use of Ento.

D.3 Dependencies.

The Customer agrees and acknowledges that:

(a) Ento has third party dependencies which may affect its availability, including (without limitation) hosting and infrastructure providers; and

(b) The Company has no means of controlling the availability of such dependencies, although each of those services has a robust operating standard suitable for commercial dependency.

D.4 Support. 

The Company provides user support for Ento via:

(a) A dedicated support centre https://ento.com/support/;


(b) A dedicated support email contact@ento.com;

(c) A dedicated live chat service accessed via the Site; and

(d) A dedicated call support centre on 1800 961 5784.

1. (b)The Company shall endeavour to respond to all support requests within 24 hours.

2. (c)The Company reserves the right to require the payment of reasonable Fees for non-standard support requests prior to the provision of such support.

D.5 Cancellation

(a) The Customer may cancel an Account at any time via the Application. A request by phone or email to cancel an Account is not considered cancellation.

(b) If an Account is cancelled before the end of the current paid up month, cancellation will take effect immediately and the Customer will not be charged again. There are no refunds for partial months of service or remaining Account Balance credit at the time of cancelling an Account.

(c) The Company agrees to remove all Customer Data from Ento within 14 days of written request by the Customer.

E SPECIAL CONDITIONS

E.1 The parties may agree to any Special Conditions to this Agreement in writing. Where the parties make such Special Conditions those Special Conditions shall prevail over any inconsistency with any other provisions of this Agreement.

GENERAL CONDITIONS

1. INTERPRETATION

1.1 The following definitions apply in this document:

Business Day means a day (other than a Saturday, Sunday or public holiday) on which banks are open for general banking business in Ontario, Canada.

Commencement Date means the earlier date of either the signing of this Agreement or the Kick Off. 

Confidential Information means all information (whether or not it is described as confidential) in any form or medium concerning any past, present or future business, operations or affairs of either party, including, without limitation:

(a) all technical or non-technical data, formulae, patterns, programs, devices, methods, techniques, plans, drawings, models and processes, source and object code, software and computer records;

(b) all business and marketing plans and projections, details of agreements and arrangements with third parties, and Customer and supplier information and lists;

(c) all financial information, pricing schedules and structures, product margins, remuneration details and investment outlays;

(d) all information concerning any employee, customer, contractor, supplier or agent of the relevant party;

(e) the party’s policies and procedures; and 

(f) all information contained in this document,

(g) but excludes information that the other party can establish:

(h) is known by or is in the other party’s possession or control other than through a breach of this document and is not subject to any obligation of confidence; or

(i) is in the public domain other than by a breach of this document or any obligations of confidence.

Force Majeure means an event or cause beyond the reasonable control of the party claiming force majeure.  It includes each of the following, to the extent it is beyond the reasonable control of that party: act of God, lightning, storm, flood, fire, earthquake or explosion cyclone, tidal wave, landslide, adverse weather conditions; act of public enemy, war (declared or undeclared), terrorism, sabotage, blockade, revolution, riot, insurrection, civil commotion, epidemic; the effect of any change in applicable laws, orders, rules or regulations of any government or other competent authority; and embargo, inability to obtain necessary materials, equipment or facilities, or power or water shortage.

General Conditions means the terms and conditions set out in the section of this Agreement entitled “General Conditions”.

Taxes means any good and services tax, harmonized sales taxes, provincial sales taxes, and any other similar taxes, duties and charges of any kind imposed by any governmental authority on any amounts payable by the Customer under this Agreement.  

Intellectual Property means all copyright, patents, inventions, trade secrets, know-how, product formulations, designs, circuit layouts, databases, registered or unregistered trademarks, brand names, business names, domain names and other forms of intellectual property;

Intellectual Property Rights means, for the duration of the rights in any part of the world, any rights protecting Intellectual Property, Moral Rights, industrial rights, whether registrable or not, applications for the registration of any Intellectual Property and any improvements, enhancements or modifications to any Intellectual Property registrations.

Moral Rights means moral rights pursuant to the Copyright Act (R.S.C., 1985, c. C-42 ;or any rights analogous to the rights set out in Article 6bis of the Berne Convention for Protection of Literary and Artistic Works 1886 (as amended from time to time).

Important Terms means this Agreement’s details and variables set out in the section of this Agreement entitled “Important Terms”.

Personal Information means any information that identifies or relates to an identifiable natural person; an identifiable natural person is one who can be identified directly or indirectly, including without limitation by reference to an identifier such as a name, an identification number, location data or to one or more factors specific to the physical, physiological, genetic, mental, economic, cultural or social identity of the natural person. 

Privacy Law means all laws, regulations, and procedures, as amended, relating to the collection, use, disclosure, access, processing, security, confidentiality, or privacy of Personal Information, to the extent applicable to each respective Party in connection with this Agreement;

Special Conditions means the terms and conditions set out in the section of this agreement entitled “Special Conditions”.

Third Party means any party other than the Company or Customer.

Customer-elected Third Party Services means Third Party Services that the Customer has nominated, initiated, installed, connected or permitted to be installed or connected to Ento.

1.2 Headings are only for convenience and do not affect interpretation.  The following rules apply unless the context requires otherwise:

(j) The singular includes the plural and the opposite also applies.

(k) If a word or phrase is defined, any other grammatical form of that word or phrase has a corresponding meaning.

(l) A reference to a clause refers to clauses in this Agreement.

(m) A reference to legislation is to that legislation as amended, re-enacted or replaced, and includes any subordinate legislation issued under it.

(n) Mentioning anything after includes, including, or similar expressions, does not limit anything else that might be included. 

(o) A reference to a party to this Agreement or another agreement or document includes that party’s successors and permitted substitutes and assigns (and, where applicable, the party’s legal personal representatives).

(p) A reference to a person, corporation, trust, partnership, unincorporated body or other entity includes any of them.

(q) A reference to information is to information of any kind in any form or medium, whether formal or informal, written or unwritten, for example, computer software or programs, concepts, data, drawings, ideas, knowledge, procedures, source codes or object codes, technology or trade secrets.

(r) A reference to dollars or $ is to an amount in Canadian currency.

2 APPLICATION OF THIS AGREEMENT

2.1 This Agreement applies to use of and access to Ento. 

2.2 Where the User does not accept or can no longer comply with the terms and conditions of this Agreement, the User must immediately cease using Ento.

2.3 This Agreement may be updated by the Company at its absolute discretion from time-to-time, and unless stated otherwise by the Company in writing, such updates shall come into effect for use of Ento at the commencement of the User’s next billing period

3 SERVICE

3.1 The Customer agrees and accepts that Ento is:

(a) hosted by the Company and shall only be installed, accessed and maintained by the Company, accessed using the internet or other connection to the Company’s servers and is not available ‘locally’ from the Customer’s systems; and

(b) managed and supported exclusively by the Company from the Company’s servers and that no ‘back-end’ access to Ento is available to the Customer unless expressly agreed in writing.

3.2 As a hosted and managed service, the Company reserves the right to upgrade, maintain, tune, backup, amend, add or remove features, redesign, improve or otherwise alter Ento with or without notice. 

3.3 The Company will use commercial reasonable efforts not to exercise its rights under clause  3.2 negligently or intentionally in a manner that would cause the Customer to lose access to Customer Data or decrease the utility of Ento to the Customer, other than in accordance with the terms of this Agreement. 

4 LICENSE

4.1 By accepting the terms and conditions of this Agreement, the Customer is granted a limited, non-exclusive and revocable license to access and use Ento for the duration of this Agreement, in accordance with the terms and conditions of this Agreement.

4.2 The Company may revoke or suspend the Customer’s license(s) if the Customer, or any of its users, is in breach of a material term or condition of this Agreement, the law, or upon the termination of this Agreement. The Company will advise the Customer of any suspension or revocation.

5 USE

5.1 The Customer agrees that it shall only use Ento for legal purposes and shall not use it to engage in any conduct that is unlawful, immoral, threatening, abusive or in a way that is deemed unreasonable by the Company in its discretion.

6 AUTHORISED USERS

6.1 The Customer shall authorise Staff Users to access Ento in its absolute discretion.

6.2 The Company accepts no liability for access to Customer Data by Staff Users or anyone else using login details of a Customer.

6.3 The individual Staff User is solely responsible for the security of its username and password for access to Ento, and for all activity that occurs through their Account, whether authorised or not. The Company will in no way be liable for any loss or damage arising out of a failure to maintain password security.

6.4 The Staff User is responsible for ensuring that they comply with this Agreement in full and are liable for any breach of them.

7 CUSTOMER DATA

7.1 Other than as reasonably required to fulfil its obligations under this Agreement, the Company obtains no right, title or interest in Customer Data including any Intellectual Property found within it. 

7.2 The Company accepts no liability for the content of Customer Data but shall use those security measures set out herein to maintain the security and confidentiality of the Customer Data. 

7.3 The Customer is responsible for the accuracy, quality and legality of Customer Data and the Customer’s acquisition of it, and the users that create, access and/or use Customer Data.

7.4 Despite clause 7.1, on at least 31 days’ written notice, the Company shall be authorised to permanently delete Customer Data where:

(a) Outstanding Fees remain unpaid in accordance with the Important Terms; and/or

(b) This Agreement is terminated, and the Account is closed.

(c) The Customer’s data has been exported and delivered to the Customer in a format approved by the Customer.

7.5 The Company shall not access, use, modify or otherwise deal with Customer Data except where required by compulsion of law, to fulfill it’s obligations under this Agreement or upon the Customer’s authority (such as to provide support for Ento).

7.6 The Customer may request that the Company delete Customer Data and Customer Intellectual Property and the Company must oblige, except in circumstances where retention of the Customer Data is reasonably necessary to protect the rights of the individual or Company or the Company is prohibited to do so by law.

8 PRIVACY

8.1 The Company maintains the Privacy Policy in compliance with Privacy Laws for data that it collects about the Customer and other customers.

8.2 The Company acknowledges that the requirements set out in the Privacy Policy relating to the minimum age of the Staff User do not apply in relation to the Customer’s Users.

8.3 The Company warrants that all third parties engaged to assist with the provision of Ento under this Agreement which handle, process or store Customer Data shall be placed under contractual obligations relating to privacy and information security which are no less onerous than those imposed on the Company under this Agreement.

8.4 The Company acknowledges that the Customer shall be entitled, upon written request, to review any third party contracts contemplated in clause 8.3 to ensure compliance, subject to any redactions for confidentiality reasons. 

8.5 The Privacy Policy does not apply to how the Customer handles Customer Data.  The Customer must, and must ensure that its Staff Users, at all times comply with Privacy Law in respect of all Personal Information collected, used, stored or otherwise dealt with under or in connection with this Agreement including by implementing a privacy policy in accordance with law. Customer warrants that it has collected, used, stored and otherwise dealt with Customer Data in accordance with Privacy Law and that the Company is capable of collecting, using, storing or otherwise dealing with Customer Data, in the manner contemplated by this Agreement, without infringing any third party rights or violating any applicable Privacy Law.

8.6 The Company agrees to only disclose Customer Data, to the extent it contains Personal Information if: (a) it is authorised by Privacy Law to collect the Personal Information and to use or disclose it in the manner required by this Agreement; and (b) where required by law it has informed the individual to whom the Personal Information relates, that it might be necessary to disclose the Personal Information to third parties.

8.7 The Company makes no warranty as to the suitability of Ento in regards to the Customer’s obligations under any applicable Privacy Law, and it is the Customer’s responsibility to determine whether Ento is appropriate for the Customer’s circumstances.

8.8 The Company acknowledges that it will access Personal Information under this Agreement. 

8.9 The Company will comply with applicable Privacy law and will take all reasonable directions from the Customer in relation to the use of that Personal Information and co-operate with the Customer to resolve any complaint alleging a breach of any Privacy Law in Canada or otherwise relevant to the Company in respect of Personal information accessed by the Company.

9 INVOICING DISPUTES & PAYMENTS

9.1 The Company shall issue the Customer an invoice for all Fees for which Taxes applies.

9.2 The terms of payment set out in the Important Terms shall apply.

9.3 Should the Customer dispute an invoice, the Customer must notify the Company of the disputed item within 15 Business Days of the date of the invoice.  The Customer must pay the amount of the invoice not in dispute within the prescribed payment period.

9.4 Overdue invoices shall accrue interest at the rate of 1.5% per month, or in default, the maximum rate of penalty interest prescribed under law.

10 THIRD PARTY SERVICES

10.1 The Customer acknowledges that Ento may integrate Accounts with Third Party Services, including (but not limited to) point of sale software. 

10.2 Where integration occurs under item 10.1, the Customer authorises Ento to collect and use any data transmitted in accordance with this Agreement.

10.3 The Customer acknowledges that no permission is required to integrate Accounts with Third Party Services where such action is related to the provision of Ento by the Company.

10.4 The Company acknowledges that no Third Party Services are to be integrated with Accounts without obtaining the prior written consent of the Customer if such integration is unrelated to the provision of Ento by the Company.

10.5 The Customer agrees that the Company shall not be responsible or liable in any way for:

(a) Interruptions to the ongoing availability or efficacy of Customer-elected Third Party Services;

(b) Interruptions to the availability of Ento due to Customer-elected Third Party Services; and

(c) The accuracy of data generated from Customer-elected Third Party Services.

10.6 The Customer will be presumed to agree to the terms of use of any Customer-elected Third Party Service.

11 DATA

11.1 Security.  The Company takes the security of Ento and the privacy of its Customers very seriously. Accordingly the Company shall ensure its continued compliance with Privacy Law and the Company’s Privacy Policy. The Customer Data will be stored on AWS Cloud, which is compliant with ISO27001 as of the date of this Agreement. In the event it is unable to guarantee compliance the Company shall notify the Customer as soon as is reasonably practicable and no later than 24 hours following discovery of the Company actual or potential non-compliance.

The Customer agrees that the Customer shall not do anything to prejudice the security or privacy of the Company’s systems or the information on them, and to continue to implement information security practices of a high standard in order to protect the security of the Customer Data.

11.2 Transmission.  The Company shall do all things reasonable to ensure that the transmission of data occurs according to accepted industry standards in Canada. It is up to the Customer to ensure that any transmission standards meet the Customer’s operating and legal requirements.

11.3 Storage.  The Company may limit the amount of data that the Customer stores in Ento, and shall advise the Customer of such.  Data that is stored with the Company shall be stored according to accepted industry standards.

11.4 Backup.  The Company shall perform backups of its entire systems in as reasonable a manner at such times and intervals as is reasonable for its business purposes.  The Company does not warrant that it is able to backup or recover specific Customer Data from any period of time unless so stated in writing by the Company.

12 INTELLECTUAL PROPERTY

12.1 Company Trademarks.  The Company has Intellectual Property Rights, including moral & registered rights, in its trademarks and the Customer shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Company.

12.2 Customer Trademarks. The Customer has Intellectual Property Rights, including moral & registered rights in its trademarks and the Company shall not copy, alter, use or otherwise deal in the marks without the prior written consent of the Customer.

12.3 Proprietary Information.  Ento may use software and other proprietary systems and Intellectual Property for which the Company has appropriate authority to use, and the Customer agrees that such is protected by copyright, trademarks, patents, proprietary rights and other laws, both domestically and internationally.   

12.4 Ento.  The Customer agrees and accepts that Ento is the Intellectual Property of the Company and the Customer further warrants that by using Ento the Customer will not:

(a) copy Ento or the services that it provides for the Customer’s own commercial purposes; and

(b) directly or indirectly copy, recreate, decompile, reverse engineer or otherwise obtain, modify or use any source or object code, architecture, algorithms contained in Ento or any documentation associated with it.

12.5 Content.  All content (with the exception of Customer Data) remains the Intellectual Property of the Company, including (without limitation) any source code, ideas, enhancements, feature requests, suggestions or other information provided by the User or any other party with respect to Ento. The Company acknowledges that for a period of 12 months following the date Ento is Rolled Out under this Agreement, the Company must not  use the Customer’s unique fields or dashboards unless a third party customer expressly requests and pays the Company for this information. This remains subject to the confidentiality provisions of this Agreement. 

13 CONFIDENTIALITY

13.1 The Company agrees to keep all Customer Data in the strictest confidence, and to the extent Customer Data is accessed and/or received by Ento it shall be deemed as Confidential Information for the purposes of this Agreement.

13.2 Each party acknowledges and agrees that:

(a) the Confidential Information is secret, confidential and valuable to the disclosing party (Discloser);

(b) it owes an obligation of confidence to the Discloser concerning the Confidential Information;

(c) it must not disclose the Confidential Information to a third party except as permitted in this Agreement; 

(d) all Intellectual Property rights remain vested in the Discloser but disclosure of Confidential Information does not in any way transfer or assign any rights or interests in the Intellectual Property to the receiving party; and

(e) any breach or threatened breach by the receiving party of an obligation under this Agreement may cause the Discloser immediate and irreparable harm for which damages alone may not be an adequate remedy.  Consequently the Discloser has the right, in addition to other remedies available at law or in equity, to seek injunctive relief against the receiving party (and its agents, assigns, employees, officers and directors, personally) or to compel specific performance of this clause.

13.3 A party must notify the Discloser in writing, giving full details known to it immediately, when it becomes aware of:

(a) any actual, suspected, likely or threatened breach by it of any obligations it has in relation to the Confidential Information.

(b) any actual, suspected, likely or threatened breach by any person of any obligation in relation to the Confidential Information; or

(c) any actual, suspected, likely or threatened theft, loss, damage, or unauthorised access, use or disclosure of or to any Confidential Information.

13.4 The receiving party must promptly take all steps that the Discloser may reasonably require and must co-operate with any investigation, litigation or other action of the Discloser or of a related body corporate if there is:

(a) any actual, suspected, likely or threatened breach of a term of this Agreement; or 

(b) any theft, loss, damage or unauthorised access, use or disclosure of or to any Confidential Information that is or was in its possession or control.

13.5 If requested by the Customer and such a request is not contrary to any relevant laws or regulations, the Company will promptly destroy all material in the possession of the Company which contains the Customer’s Confidential Information and provide the Customer with a statement signed by the Company certifying that the Company has complied with the provisions of this clause 13.5.

14 LIABILITY & INDEMNITY

14.1 The Customer agrees that it uses Ento at its own risk. Ento is provided on an “as is” and “as available” basis.

14.2 The Customer acknowledges that the Company is not responsible for the conduct or activities of any Customer and that the Company is not liable for such under any circumstances.

14.3 In no circumstances will either party be liable to the other for any indirect, incidental, consequential or indirect damages, loss of profits, goodwill, bargain or opportunity, loss of anticipated savings or any other similar or analogous loss resulting from the other party’s performance under the Agreement whether based on warranty, contract, tort, negligence, in equity or any other legal theory, and whether or not the party knew or should have known of the possibility of such damage, to business interruption of any type, whether in tort, contract or otherwise.

15 BREACH

15.1 Where a party is in breach of this Agreement, the other party may issue a written notice (Breach Notice) requiring the party in breach to remedy the breach which must set out: 

(a) the nature of the breach;

(b) the provisions of the Agreement that are alleged to have been breached;

(c) a reasonable timeframe to remedy the breach (in any event, no longer than 20 Business Days); and

(d) the action required to remedy the breach.

15.2 Where a party issues a compliant Breach Notice in accordance with clause 15.1, the receiving party shall be required to respond and/or remedy the breach as so set out in the Breach Notice within 20 Business Days.  Failure to respond in writing setting out:

(a) the steps taken to remedy the breach; or

(b) why the party believes it is not in breach as put forward in the Breach Notice,

(c) shall not in itself confirm the alleged breach but shall be in itself a breach of this Agreement. 

15.3 Failure to remedy a breach set out in a Breach Notice shall be a material breach of this Agreement. (Material Breach).

16 TERMINATION

16.1 Breach.  Where a party is in Material Breach of this Agreement, the other party may terminate this Agreement immediately.

16.2 Insolvency.  Either party may terminate this Agreement immediately by notice, if the other party:

(a) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; 

(b) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; 

(c) makes or seeks to make a general assignment for the benefit of its creditors; or 

(d) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business;

(e) seeks reorganization, arrangement, adjustment, winding-up, liquidation, dissolution, composition, or other relief with respect to it or its debts;

(f) has any security enforced over, or a distress, execution or other similar process levied or served against, the whole or a substantial part of its assets or undertaking; or

(g) is subject to any event which, under the law of any relevant jurisdiction, has an analogous or equivalent effect to any of the events listed above.

16.3 The Customer may terminate this Agreement at any time on 3 months’ notice.

16.4 The Company may terminate this Agreement at any time on 3 months’ notice.

16.5 Expiry or termination of this Agreement is without prejudice to and does not affect the accrued rights or remedies of any of the parties arising in any way out of this Agreement up to the date of expiry or termination.

16.6 The rights and obligations under the relevant provisions of clauses 6, 7, 8, 9, 12, 13, 14, 15, 16, 17, 18 survive termination of this Agreement.

16.7 In the event of termination in accordance with this Clause 16 the Company shall (within 5 Business Days of termination of this Agreement) provide to the Customer all Customer Data and Customer Intellectual Property held on the Ento System and associated infrastructure in a form reasonably agreed to by the Customer. Following delivery of the Customer Data and Customer Intellectual Property to the Customer, the Company shall delete the Customer Data and Customer Intellectual Property held on the system and provide the Customer with written confirmation of such deletion.

17 DISPUTES

17.1 All disputes shall be handled in accordance with the following process:

Negotiation.  If there is a dispute between the parties relating to or arising out of this Agreement, then within 10 Business Days of a party notifying the other party of a dispute, senior representatives from each party must meet (or discuss directly via the telephone or internet) and use all reasonable endeavours acting in good faith to resolve the dispute by joint discussions;

Mediation.  If the dispute between the parties relating to or arising out of this Agreement is not resolved within five Business Days of notification of the dispute under Clause 17.1 (a), the parties must agree to submit the dispute to mediation, administered by lawyers engaged in alternative dispute resolution;

Court proceedings.  A party may not commence court proceedings in relation to a dispute relating to or arising out of this Agreement until it has exhausted the procedures in this clause 17.1 (c) unless the party seeks appropriate injunctive or other interlocutory relief to preserve property or rights or to avoid losses that are not compensable in damages.

18 FORCE MAJEURE

18.1 If a party is prevented in whole or in part from carrying out its obligations under this Agreement as a result of Force Majeure, it will promptly notify the other party accordingly.  The notice must:

(a) specify the obligations and the extent to which it cannot perform those obligations;

(b) fully describe the event of Force Majeure;

(c) estimate the time during which the Force Majeure will continue; and

(d) specify the measures proposed to be adopted to remedy or abate the Force Majeure.

18.2 Following a notice of Force Majeure in accordance with clause 18.1 and while the Force Majeure continues, the obligations which cannot be performed because of the Force Majeure will be suspended, other than obligations to pay money that is due and payable.

18.3 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must remedy the Force Majeure to the extent reasonably practicable and resume performance of its obligations as soon as reasonably possible.

18.4 The party that is prevented from carrying out its obligations under this Agreement as a result of Force Majeure must take all action reasonably practicable to mitigate any loss suffered by the other party as a result of the party’s failure to carry out its obligations under this Agreement.

18.5 The term of this Agreement will not be extended by the period of Force Majeure.

19 ELECTRONIC COMMUNICATION AND ASSIGNMENT

19.1 The Customer can direct notices, enquiries, complaints and so forth to the Company as set out in this Agreement.  The Company will notify the Customer of a change of details from time-to-time.

19.2 The Company will send the Customer notices and other correspondence to the details that the Customer submits to the Company, or that the Customer notifies the Company of from time-to-time. It is the Customer’s responsibility to update its contact details as they change.

19.3 A consent, notice or communication under this Agreement is effective if it is sent as an electronic communication unless required to be physically delivered under law.

19.4 Notices must be sent to a party’s most recent known contact details.

19.5 Neither party may assign or otherwise create an interest in this Agreement without the written consent of the other party, and such consent may not be unreasonably withheld or delayed.

20 GENERAL

20.1 Prevalence. Each party to this Agreement agrees to the clauses in the Important Terms and the Special Conditions.  The Important Terms, any Special Conditions and the General Conditions form a single legal agreement.  To the extent that the Important Terms or the Special Conditions are inconsistent with the General Conditions, the terms of the Important Terms will prevail. To the extent that the Special Conditions are inconsistent with the Important Terms, the Special Conditions will prevail.

20.2 Disclaimer.  Each party acknowledges that it has not relied on any representation, warranty or statement made by any other party, other than as set out in this Agreement.

20.3 Relationship.  The relationship of the parties to this Agreement does not form a joint venture or partnership.

20.4 Waiver.  No clause of this Agreement will be deemed waived and no breach excused unless such waiver or consent is provided in writing.

20.5 Further Assurances.  Each party must do anything necessary (including executing agreements and documents) to give full effect to this Agreement and the transaction facilitated by it.

20.6 Governing Law.  This Agreement is governed by the laws of the Province of Ontario, and the federal laws of Canada.  Each of the parties hereby submits to the non-exclusive jurisdiction of courts with jurisdiction there.

20.7 Severability.  Any clause of this Agreement, which is invalid or unenforceable is ineffective to the extent of the invalidity or unenforceability without affecting the remaining clauses of this Agreement.

20.8 Entire Agreement. These terms and any other terms expressly referred to in them represent the entire agreement between you and us and supersede any prior agreement, understanding or arrangement between the parties, whether oral or in writing.

END GENERAL CONDITIONS