WM Synergy TERMS OF SERVICE
These Terms of Service were last updated on January 10, 2024.
These Terms of Service (“ToS”) are made and entered into by and between WM Synergy LLC (“Provider” or “WM Synergy” or “Licensor”) and the business entity agreeing to these terms (“Company”, “Licensee”, or “you”). The WM Synergy Terms of Service are located at https://wm-synergy.com/wm-synergy-terms-of-service-canada/ which may be amended in WM Synergy’s sole discretion, from time to time. WM Synergy and Company may each be referred to as Party and collectively as Parties.
This Agreement is effective as of the date Company signs a Statement of Work or Sales Order (the “Effective Date”). If you are accepting on behalf of Company, you represent and warrant that: (i) you have full legal authority to bind Company or you personally to this Agreement; (ii) you have read and understand this Agreement; and (iii) you agree, on behalf of Company, to this Agreement. If you do not have the legal authority to bind Company, please do not click to accept. This Agreement governs Company’s access to and use of the Provider’s Services, and in the event there is any conflict between the ToS and any Statement of Work, then the terms of the ToS prevail. Any executed Statement of Work is included by reference to this ToS. WM Synergy’s Privacy Policy is included by reference to these ToS found at https://wm-synergy.com/privacy-policy/, which may be amended in WM Synergy’s sole discretion, from time to time.
1. PROFESSIONAL SERVICES
1.1 Fees. In consideration for the rights granted in this Agreement, Company agrees to pay WM Synergy the fees in Canadian Dollars described in each executed Statement of Work (“SOW”). All fees quoted and payments made herein shall be in Canadian Dollars. This Agreement and all fees paid under this Agreement shall be held confidential under the terms of this Agreement, and subject to conformance with legal obligations of Company.
1.2 Taxes. Company shall be responsible for all harmonized sales tax, goods and services tax, sales taxes, use taxes, and any other similar taxes imposed by any federal, provincial or local governmental entity on the transactions contemplated by this Agreement, excluding taxes based upon WM Synergy’s net income. When WM Synergy has the legal obligation to pay or collect such taxes, the appropriate amount shall be invoiced to and paid by Company unless Company provides WM Synergy with a valid tax exemption certificate authorized by the appropriate taxing authority.
1.3 Scope. Company may request WM Synergy to provide including, but not limited to, special studies, education and training, systems/application analysis, design and development, programming, conversion and implementation planning, and installation evaluation (collectively known as “Professional Services”). WM Synergy may agree to provide such services solely at its discretion at the then current rates charged for such Professional Services plus reasonable travel and other out of pocket expenses. Prior to delivery of any Professional Services by WM Synergy, Company may be required to execute a SOW that references the terms of this Agreement. The SOW shall be prepared by WM Synergy and shall contain a description of the work to be performed, a performance schedule, a fee schedule and any additional obligations of each Party.
1.4 Limitations. Professional Services provided under this Agreement shall be subject to the terms set forth hereunder, including warranty exclusions and limitations of liability. WM Synergy’s liability from the delivery of Professional Services shall not exceed the amount actually paid by Company for Professional Services provided by WM Synergy under the specific SOW under which the claims were made.
1.5 Title. Subject to the license rights granted hereunder, as between the Parties, WM Synergy shall exclusively own all right, title, and interest in and to any and all worldwide patents, copyrights, trade secrets, and other intellectual property resulting from WM Synergy’s performance of services.
1.6 Term and Termination. This Agreement is effective from Effective Date and shall remain in force until terminated by either Party upon thirty (30) days written notice. In the event that either Party terminates any SOW or agreed professional services, WM Synergy shall be entitled to all fees for services performed prior to termination.
2. SOFTWARE
2.1 Proprietary Protection. Licensor shall have sole and exclusive ownership of all right, title, and interest in and to the Software and user materials, all copies thereof, and all modifications and enhancements thereto (including ownership of all copyrights and other intellectual property rights (including moral rights) pertaining thereto), subject only to the right and license expressly granted to you herein. This Agreement does not provide you with title or ownership of the Software, but only a right of limited use.
2.2 Limitations on Use. You may not use, copy, modify, or distribute the Software (electronically or otherwise), or any copy, adaptation, transcription, or merged portion thereof, except as expressly authorized by Licensor, you may not reverse assemble, reverse compile, or otherwise translate the Software. Your license may not be transferred, leased, assigned, or sublicensed without Licensor’s prior written consent (in Licensor’s sole discretion), except for a transfer of the Software in their entirety to a successor in interest of your entire business who assumes the obligations of this Agreement by notice in writing to Licensor. You may not install the Software anywhere but the Designated Location(s) without Licensor’s prior written consent (which will not be unreasonably withheld), provided that you may transfer the Software to another location temporarily in the event of an interruption of computer operations at the Designated Location(s). You authorize Licensor to enter your premises in order to inspect the Software during regular business hours to verify compliance with the terms of this Agreement. The Software is a proprietary product and contains valuable trade secrets of Licensor. You agree to take adequate steps to protect the Software from unauthorized disclosure or use. This confidentiality obligation shall survive any termination of this Agreement.
2.3 Warranty. Licensor warrants for a period of thirty (30) days after delivery, for your benefit alone, that such Software, when operated with the equipment configuration and in the operating environment specified by Licensor, will perform substantially in accordance with the technical specifications included or referred to in the applicable Software Description. Licensor does not warrant that the Software will be error-free in all circumstances. Licensor is not responsible for error covered by such warranty resulting from problems with hardware, operating systems, databases, or programming languages. In the event of any defect or error covered by such warranty, you agree to provide Licensor with sufficient detail to allow Licensor to reproduce the defect or error. As your exclusive remedy for any defect or error in the Software covered by such warranty, and as Licensor’s entire liability in contract, tort, or otherwise, Licensor will correct such error or defect at Licensor’s facility by issuing corrected instructions, a restriction, or a bypass. However, Licensor is not responsible for any defect or error not reported during the warranty period or any defect or error in a Software you have modified, misused, or damaged. EXCEPT AS EXPRESSLY SET FORTH IN THIS PARAGRAPH, LICENSOR SHALL HAVE NO LIABILITY FOR THE SOFTWARE OR ANY SERVICES PROVIDED, INCLUDING ANY LIABILITY FOR NEGLIGENCE OR FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, LOST PROFITS OR REVENUES, OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THESE TERMS, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY COMPANY OR COULD HAVE BEEN REASONABLY FORESEEN BY COMPANY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.; LICENSOR MAKES AND YOU RECEIVE NO WARRANTIES, EXPRESS, IMPLIED, STATUTORY, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER COMMUNICATION; AND LICENSOR SPECIFICALLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
2.4 Limitation of Liability. Exclusion of Consequential Damages. The cumulative liability of Licensor to you for all claims relating to the Software and any services rendered hereunder, in contract, tort, or otherwise, shall not exceed the total amount of all license fees paid to Licensor for the relevant Software. This limitation shall not apply to the indemnification provided in Paragraph 2.5. In no event shall either party be liable to the other for any consequential, indirect, exemplary, punitive, special, or incidental damages, even if such party has been advised of the possibility of such potential loss or damage. The foregoing limitation of liability and exclusion of certain damages shall apply regardless of the success or effectiveness of other remedies.
2.5 Indemnification for Intellectual Property Infringement. If a third party claims that the Program(s) infringe or misappropriate any U.S. patent, copyright, or trade secret, Licensor will (as long as you are not in default under this Agreement or any other agreement with Licensor) defend you against such claim at Licensor’s expense and pay all damages that a court finally awards, provided that you promptly notify Licensor in writing of the claim, and allow Licensor to control, and cooperate with Licensor in, the defense or any related settlement negotiations. If such a claim is made or appears possible, Licensor may, at its option, secure for you the right to continue to use the Software, modify or replace the Software so they are non-infringing, or, require you to return the Software for a credit equal to the portion of previously paid license fees. However, Licensor has no obligation for any claim based on a modified version of the Software or their combination, operation, or use with any product, data, or apparatus not provided by Licensor. THIS PARAGRAPH STATES LICENSOR’S ENTIRE OBLIGATION TO YOU WITH RESPECT TO ANY CLAIM OF ANY INTELLECUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
2.6 Default. Should Licensee fail to pay any fees or charges due hereunder or fail to carry out any other obligation under this Agreement or any other agreement with Licensor, Licensor may, at its option, in addition to other available remedies, terminate this Agreement and require Licensee to follow Termination instructions as provided in Paragraph 2.7, provided that it first gives Licensee fifteen (15) days’ prior notice in order to cure your default.
2.7 Termination. Upon termination of this Agreement your license will terminate, and you are required to return or destroy, as requested by Licensor, all copies of the Program(s) in your possession (whether modified or unmodified), and all other materials pertaining to the Program(s), including all copies thereof and cease use of the Software. You agree to certify your compliance with such requirement upon Licensor’s request.
3. CONFIDENTIALITY AND PROPRIETARY RIGHTS
3.1 Disclosure. For the purposes of this agreement, “Confidential Information” means all technical, operational and/or business information of a Party, including the pricing, terms and conditions of this Agreement, which at the time of disclosure is non-public, confidential, or proprietary in nature. Both Parties acknowledge that the Confidential Information constitute valuable trade secrets and agree to use Confidential Information solely in accordance with the terms of this Agreement. Both Parties also agree not to disclose, or permit to be disclosed, directly or indirectly the same to any third party without the prior written consent of the non-disclosing Party. Each Party shall treat as confidential all Confidential Information received from the other, shall not use such Confidential Information except as expressly permitted under this Agreement, and shall not disclose such Confidential Information to any third party without the other’s prior written consent. Each Party shall take reasonable measures to prevent the disclosure and unauthorized use of Confidential Information of the other. A non-breaching Party under this Section shall be entitled to injunctive relief for any violation of this Section.
3.2 Exceptions. Notwithstanding the foregoing, the restrictions of this Section 3 shall not apply to information that (a) was independently developed by a Party without any use of the Confidential Information of and the other by employees or other agents of such Party who have not been exposed to the Confidential Information; (b) becomes known to a Party, without restriction, from a third party without breach of this Agreement and who had a right to disclose it; (c) was in the public domain at the time it was disclosed or becomes in the public domain through no act or omission of a Party; (d) was rightfully known to a Party, without restriction, at the time of disclosure; or (e) is disclosed pursuant to an order of a court, administrative agency, or other governmental body; provided, however, that such Party shall provide prompt notice of a request to disclose the Confidential Information to the other and shall cooperate with the other Party to obtain a protective order or otherwise prevent public disclosure of such information.
4. WARRANTY
4.1 Limited Warranty. WM Synergy warrants that it will perform all work on each SOW using commercially reasonable efforts.
4.2 WM Synergy and Company each warrant the individuals executing this Agreement have the proper corporate authority to sign this Agreement.
5. LIMITATION OF LIABILITY
5.1 IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY FOR ANY INDIRECT, INCIDENTAL, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES IN ANY WAY ARISING OUT OF OR RELATING TO THIS AGREEMENT AND HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS OR REVENUES, DIMINUTION IN VALUE, OR LOSS OF DATA, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL WM SYNERGY’S CUMULATIVE LIABILITY ARISING OUT OF ANY SPECIFIC SOW OR SALES ORDER UNDER FOR WHICH CLAIMS WERE BROUGHT BY COMPANY UNDER THIS AGREEMENT EXCEED THE AMOUNTS ACTUALLY PAID BY COMPANY TO WM SYNERGY UNDER THE APPLICABLE SOW OR SALES ORDER, INCLUDING BOTH BILLING FOR TIME FOR SERVICES AND SUPPORT, FOR SERVICE DESK SUPPORT OR SOFTWARE, IN THE YEAR PRECEEDING THE FILING OF A LAWSUIT LEADING TO A JUDGMENT FOR DAMAGES, PROVIDED THAT SUCH LIMITATION SHALL NOT BE CONSTRUED TO LIMIT EITHER PARTY’S INDEMNITY OBLIGATIONS UNDER SECTION 6 OR A BREACH BY EITHER PARTY OF THE OBLIGATIONS SET FORTH IN SECTION 3 OR A PARTY’S RIGHTS TO COMMON LAW CONTRIBUTION CLAIMS THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. WM SYNERGY MAKES NO OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE IN FACT OR IN LAW, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
6. INDEMNIFICATION
Mutual. Each Party agrees to indemnify and hold the other Party harmless from and against any and all claims, demands, actions, causes of action, penalties, judgments, expenses, court costs (including reasonable legal fees) based upon or arising out of: (a) damage to tangible personal property or injuries to persons or death to the extent caused by the proven gross negligence or willful misconduct of the other Party, its employees or agents in the performance of their respective obligations under this Agreement, or (b) third party claims of infringement or misappropriation of patents, copyrights, trademark, and trade secrets.
7. MISCELLANEOUS
7.1 Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without regard to conflict of laws principles and without regard to the United Nations Convention on Contracts for the International Sale of Goods.
7.2 Dispute Resolution. If a dispute arises under this Agreement, then within ten (10) business days of a written request by either Party, Company’s designated representative and WM Synergy’s designated representative shall meet and attempt to resolve the dispute in mediation. If the dispute cannot be resolved in a mediation, the Parties agree to an arbitration pursuant to the provisions of the Arbitration Act, 1991, S.O. 1991, c. 17, as amended, with a sole arbitrator selected by the Parties. If the Parties cannot agree on the arbitrator, the arbitrator shall be selected by agreement among or between counsel for each of the parties to the arbitration. The arbitration shall occur in the City of Toronto, Ontario, for a one (1) day hearing no more than eight (8) hours with no more than ten (10) hours of depositions be each Party.
7.3 Compliance with Laws. Without affecting the scope of the license granted herein, Company shall comply with all applicable laws, regulations, and ordinances. Company shall maintain in effect all the licenses, permissions, authorizations, consents, and permits that it needs to carry out its obligations under this Agreement and shall comply with all export and import laws of all countries involved in the sale, transfer or use of the Software under this Agreement or any permitted transfer of the Software by Company. Company assumes all responsibility for shipments of Software requiring any government import clearance. Seller may terminate this Agreement if any governmental authority imposes antidumping or countervailing duties or any other penalties on Goods.. Company will not commit any act or omission that will result in a breach of any export requirements.
7.4 Assignment. Except for the sale of the Company, Company may not assign or otherwise dispose of any rights or delegate any obligations under this Agreement without the prior written consent of WM Synergy, which shall not be unreasonably withheld. Subject to the foregoing, this Agreement shall inure to the benefit of and be binding upon both Parties and their respective successors and permitted assigns.
7.5 Complete Understanding. This Agreement, along with any Exhibits which are incorporated herein by reference, sets forth the entire agreement between the Parties and supersedes any and all prior proposals, agreements, and representations between them, whether written or oral. Except as expressly stated in this Agreement, any waiver, modification or amendment of any provision of this Agreement shall be effective only if in the form of a written amendment to this Agreement and signed by both Parties.
7.6 Notices. Any and all notices given under the provisions of this Agreement may be delivered personally, sent by certified mail, or prepaid express courier to the appropriate Party at the address of each Party set forth in the Statement of Work or to such other address as either Party may substitute by written notice to the other.
7.7 Waiver. No delay or omission or failure to exercise any right or remedy provided for herein shall be deemed to be a waiver thereof and any single or partial exercise of any such right or remedy, power or privilege shall not preclude any later exercise thereof or any exercise of any right or remedy thereafter.
7.8 Severability. In the event that any provision of this Agreement is held to be invalid, illegal or unenforceable under present or future laws, then such provision shall be fully severable and this Agreement shall be construed and enforced as if such invalid, illegal or unenforceable provisions were not a part hereof.
7.9 Independent Contractor. Each Party is acting as an independent contractor and not as agent, partner, or joint venture with the other Party for any purpose. Except as provided in this Agreement, neither Party shall have any right, power, or authority to act or to create any obligation, express or implied, on behalf of the other Party.
7.10 Headings. The headings of Sections herein are for convenience only and will not be deemed to affect in any way the scope, intent or meaning of the provisions to which they refer.
7.11 Force Majeure. Each Party shall be discharged of its responsibility to perform any obligation required of it hereunder, other than payment obligations, for the duration that such performance is prevented by reasons beyond the reasonable control of such Party, provided the Party affected gives prompt notice to the other Party, uses its best efforts to avoid or remove such causes and continues performance hereunder with all due diligence whenever such causes are removed or settled.
7.12 Counterparts. This Agreement may be executed in two or more counterparts and all counterparts so executed will for all purposes constitute one agreement, binding on all Parties hereto.
7.12 Non-Solicitation of Employees. During the term of this Agreement and for a period of one (1) year after termination of this Agreement, neither WM Synergy nor Company will offer to hire, hire, solicit for employment or retention as an independent contractor, or in any way employ any Resource of the other party without the prior written consent of the other party. “Solicit” as used in this Section does not include general solicitations, such as advertisements in newspapers, trade publications or on the internet. “Resource” for purposes of this Section means: (a) employees or independent contractors of the non-hiring party who directly worked on the Professional Services project (the “Project”), and (b) former employees of the non-hiring party who directly worked on the Project and whose employment with that party ended less than six (6) months prior to the date of such offer to hire, hire, Solicitation, or employment. In the event a Party is in breach of this section, the Party in breach shall pay to the Party not in breach the sum equivalent to the annual compensation of the employee, independent contractor, or Resource in question.