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Terms Of Service

Table of Contents

PathFactory SOFTWARE-AS-A-SERVICE TERMS OF SERVICE

LAST UPDATED AS OF December 2, 2024

The PathFactory Software-as-a-Service Terms of Service (the “Agreement”) forms an agreement between the customer identified in the Order Form (or other ordering document) which incorporates this Agreement by reference (the “Customer”) with offices at the address specified therein and the applicable PathFactory company as set out in the “PathFactory Contracting Entity” section below (“PathFactory”). This Agreement is effective as of the effective date identified in the initial Order Form which incorporates this Agreement by reference (the “Effective Date”). Each of PathFactory and Customer shall individually be referred to as a “Party” and jointly as the “Parties”.

THIS AGREEMENT SETS FORTH THE TERMS AND CONDITIONS THAT GOVERN THE PROVISION AND USE OF THE SERVICES (AS DEFINED IN EXHIBIT A). CUSTOMER ACKNOWLEDGES THAT IT HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THIS AGREEMENT, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(k).

NOW, THEREFORE, in consideration of the mutual covenants set forth in this Agreement, the Parties agree as follows:

1. Definitions

Capitalized terms used in this Agreement have the meaning ascribed to them in the preamble or in Exhibit A attached hereto.

2. The Services

  1. Provisioning of the PathFactory SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement, PathFactory will make the PathFactory SaaS Services available to Customer on the terms and conditions set out in this Agreement and the applicable Order Form during the Term. Customer is responsible for identifying and authenticating all Permitted Users, for ensuring only Permitted Users access and use the PathFactory SaaS Services, and for Permitted Users’ compliance with this Agreement.
  2. Restrictions on Use. Customer will not itself, and will not permit others to:
    1. sub-license, sell, rent, lend, lease or distribute the PathFactory SaaS Services or any Intellectual Property Rights therein, or otherwise make the PathFactory SaaS Services available to any third parties other than Permitted Users;
    2. use or access the PathFactory SaaS Services:
      1. in violation of any Applicable Laws or Intellectual Property Right;
      2. in a manner that threatens the security or functionality of the PathFactory SaaS Services; or
      3. for any purpose or in any manner not expressly permitted in this Agreement;
    3. use or access the PathFactory SaaS Services to create, collect, transmit, store, use or process any Customer Data:
      1. that Customer does not have the lawful right to create, collect, transmit, store, use or process;
      2. that violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or
      3. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
    4. copy or modify the PathFactory SaaS Services;
    5. reverse engineer, de-compile or disassemble the PathFactory SaaS Services or any part of them;
    6. access or use the PathFactory SaaS Services for purposes of benchmarking or competitive analysis of such PathFactory SaaS Services;
    7. access or use the PathFactory SaaS Services or Customer Outputs for the purpose of building a similar or competitive product or service;
    8. remove or obscure any proprietary notices or labels on the PathFactory SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
    9. use the PathFactory SaaS Services in violation of the Responsible Use Guidelines or in a manner that would be reasonably likely to disparage the reputation of PathFactory; or
    10. perform any vulnerability, penetration or similar testing of the PathFactory SaaS Services.
  3. Order Forms. On the Effective Date, the Parties will enter into an Order Form. Customer may, from time to time, in its discretion, request that PathFactory provide Customer with new services, which may include additional features or functionalities to the PathFactory SaaS Services or Professional Services. The Parties will identify all such new services and the terms and conditions relating to such new services in an Order Form and will negotiate the terms of such Order Form acting in good faith. Each Order From will be based on PathFactory’s standard form of Order Form. Upon the execution by the Parties of an Order Form, the services described in such Order Form will be deemed part of the Services and the applicable obligations of PathFactory pursuant to this Agreement, and subject to the terms and conditions hereof.
  4. Permitted Purpose. Customer may access and use the PathFactory SaaS Services solely for Customer’s business purposes, including for Customer to provide services to its customers.
  5. Suspension of Access; Scheduled Downtime; Modifications. PathFactory may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:
    (i) suspend Customer’s access to or use of the Services or any component of them:
    1. for scheduled maintenance;
    2. due to a Force Majeure Event;
    3. if PathFactory believes in good faith that Customer or any Permitted User has violated any provision of this Agreement;
    4. to address any emergency security concerns;
    5. if required to do so by a Governmental or Regulatory Authority or as a result of a change in Applicable Laws; or
    6. for any other reason as provided in this Agreement;

    (ii) make any Modifications to the Services.

    Customer is required to accept all patches, bug fixes, and updates made by or on behalf of PathFactory to the PathFactory SaaS Services, except for any updates that PathFactory has notified Customer that Customer’s access and use of such update will require Customer to agree to additional terms and conditions pursuant to an Order Form and may be subject to additional Fees. If Customer does not agree to such additional terms and conditions or Fees, then Customer acknowledges and agrees that Customer will not receive access to or use such update.

  6. Subcontracting.
    1. Customer acknowledges and agrees that PathFactory may use the Subcontractors, including those listed at https://www.pathfactory.com/sub-processors/ to provide Customer with the PathFactory SaaS Services.
    2. PathFactory may add or change any Sub-processor by providing notice of such addition or change to Customer by updating the list set out at https://www.pathfactory.com/sub-processors/.
    3. PathFactory remains solely responsible and liable to Customer for the performance or non-performance of its Subcontractors and their respective employees, subcontractors, and agents.
  7. Professional Services.PathFactory will use commercially reasonable efforts to perform the Professional Services set out in an applicable Order Form.

3. Ownership; Reservation of Rights and License Grants

  1. Subject to the rights granted in this Section 3, Customer retains all right, title and interest in and to Customer Data, including any Intellectual Property Rights in Customer Data. Customer grants to PathFactory, and its Subcontractors a nonexclusive, worldwide, perpetual, royalty-free, irrevocable, sublicensable and fully paid-up right to access, collect, use, process, store, transfer, transmit, copy, modify, adapt, and display Customer Data:
    1. to provide the Services; and
    2. to generate and compile collected data, information or other materials that are not identified as relating to a particular individual or company (such data, information and materials, the “Aggregated Data“).

      3. PathFactory may use, process, store, disclose, transfer, transmit, copy, modify and display the Aggregated Data for its business purposes, including for improvement of the Services and research. Aggregated Data is not Customer Data and is not Customer’s Confidential Information.
  2. PathFactory or its licensors retain all right, title and interest, including any Intellectual Property Rights in and to:
      1. the Services, including the PathFactory Software and PathFactory API;
      2. anything used, developed or delivered by or on behalf of PathFactory under this Agreement, including the PathFactory Models;
      3. all other PathFactory’s Confidential Information, including any reports generated from the PathFactory SaaS Services, Usage Metrics, or any Aggregated Data (if applicable);
      4. Documentation; and
      5. any Modifications to the foregoing (i) to (v),(collectively “PathFactory Property“).
  3. To the extent that Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding the Services to PathFactory (“Feedback“), Customer acknowledges and agrees that:
    1. the Feedback does not contain confidential or proprietary information and PathFactory is not under any obligation of confidentiality with respect to the Feedback; and
    2. PathFactory will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any attribution, compensation or reimbursement of any kind to Customer for such use.
  4. Subject to the terms and conditions of this Agreement, PathFactory hereby grants to Customer a revocable, non-exclusive, non-transferable, non-sub-licensable (other than to Permitted Users as provided herein), limited license during the Term to use the Documentation solely for the purpose of use and receipt of the PathFactory SaaS Services.
  5. PathFactory may monitor Customer’s access to and use of the PathFactory Services to generate Usage Metrics.

4. Privacy

To the extent Customer Data includes Personal Information, PathFactory will Process such Personal Information in accordance with all applicable privacy laws.

5. Customer User Account; Responsibility for Permitted Users

  1. In order for Customer to access and use the PathFactory SaaS Services, PathFactory will issue one or more Administrator User Accounts to Customer that provides the Administrator User with the capability to create Employee User Accounts for its Employee Users.
  2. Customer will ensure that a Permitted User only uses the PathFactory SaaS Services through the Permitted User’s assigned Customer User Account. Customer will not allow any Permitted User to share a Customer User Account with any other person. Customer will promptly notify PathFactory of any actual or suspected unauthorized use of the PathFactory SaaS Services. PathFactory reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose.

6. Support

Customer will generally have access to PathFactory’s technical support from 9:00 am EST to 8:00 pm EST each Monday to Friday (excluding Christmas Day and New Years Day) via email at support@pathfactory.com, via phone at 1-844-224-1655, or via the chat interface forming part of the PathFactory SaaS Services (“Support Services”). PathFactory will endeavour to respond to all inquiries within one business day or on the earliest following business day should the request be made on the weekend or a holiday. PathFactory will endeavour to provide follow up emails every two business days until the support ticket has been resolved or a timeline on the resolution has been provided.  PathFactory may amend the Support Services from time to time in its sole discretion.

7. Fees and Payment

  1. Fees. Customer will pay to PathFactory the fees described in any Order Form (the “Fees“). Unless otherwise noted on an Order Form:
    1. All Fees are identified in US dollars;
    2. Fees are non-cancelable and non-refundable;
    3. Quantities purchased cannot be decreased during the relevant subscription term.
  2. Invoicing. PathFactory will prepare and send to Customer, at the then-current contact information on file with PathFactory, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date.
  3. Disputed Invoices or Charges. If Customer believes PathFactory has charged or invoiced Customer incorrectly, Customer must contact PathFactory no later than 30 days after having been charged by PathFactory or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
  4. Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Any late payment will:
    1. Be increased by the costs of collection (if any);
    2. Incur interest at the rate of one and a half percent (1.5%), or the maximum legal rate (if less), plus all expenses of collection, until fully paid.
    If Customer has not paid all due and undisputed Fees within 10 days of the date that such Fees become due, PathFactory reserves the right to:
    1. Suspend Customer’s access to the PathFactory SaaS Services and any delivery of Professional Services until all due and undisputed amounts are paid in full;
    2. Notify Customer that all Fees due and payable and any amounts due to PathFactory are immediately due and are to be immediately paid by Customer to PathFactory.
  5. Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of PathFactory.In the event that PathFactory has paid any of the amounts set out in this Section 7(e) on behalf of Customer, Customer will promptly reimburse PathFactory for any such amounts.
  6. Suspension. Any suspension of the Services by PathFactory pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

8. Confidential Information

  1. Definitions. For the purposes of this Agreement, a Party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be “Recipient”, the Party disclosing such information will be “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its Affiliates, and in the case of PathFactory, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, PathFactory Property, this Agreement and where Discloser is Customer, Customer’s Confidential Information includes Customer Data. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that:
    1. is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient;
    2. Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement;
    3. becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or
    4. Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
  2. Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will:
    1. not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its own personnel and Permitted Users (if Recipient is Customer), or its and its Affiliate’s employees, contractors, subcontractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is PathFactory), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Services, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement;
    2. not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement;
    3. not alter or remove from any Confidential Information of Discloser any proprietary legend; and
    4. maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.
  3. Exceptions to Confidentiality. Notwithstanding Section 8(b), Recipient may disclose Discloser’s Confidential Information:
    1. only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure; .
    2. to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or
    3. in the case of PathFactory, to potential assignees, acquirers or successors of PathFactory if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of PathFactory.
  4. Injunction and other equitable relief. Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 8 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 8 and to the specific enforcement of the terms of this Section 8, in addition to any other remedy to which Discloser would be entitled.
  5. Return of Confidential Information. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed in this Section 8(e)) of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, PathFactory may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 8. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 8.

9. Warranty; Disclaimer

  1. Customer Warranty. Customer represents, warrants, and covenants to PathFactory that Customer has obtained and provided, and shall continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and continues to have all necessary authority in and relating to the Customer Data (including Personal Information) for PathFactory to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Laws, including applicable privacy laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and shall inform PathFactory immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon.
  2. General Disclaimer. PathFactory does not warrant that the Services will be uninterrupted or error free or that all errors can or will be corrected; nor does it make any warranty as to the results that may be obtained from use of the Services except as specifically provided in this Agreement. The Services (or any part of them), and any other products and services provided by PathFactory to Customer are provided “as is” and “as available”. Any representation or warranty of or concerning any third party licensed technology is strictly between Customer and the third party.To the extent permitted by Applicable Laws, PathFactory hereby disclaims all express, implied, collateral or statutory warranties, representations and conditions, whether written or oral, including any implied warranties or conditions of merchantability, merchantable quality, compatibility, title, non-infringement, security, reliability, completeness, quiet enjoyment, accuracy, quality, integration or fitness for a particular purpose or use, or any warranties or conditions arising out of course of dealing or usage of trade. Without limiting the generality of any of the foregoing, PathFactory expressly disclaims any representation, condition or warranty that any data or information provided to Customer in connection with Customer’s use of the Services (or any part of them), is accurate, or can or should be relied upon by Customer for any purpose whatsoever.

10. Indemnities

  1. PathFactory Indemnity
    1. PathFactory will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee“) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any Claims by a third party (other than an Affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the PathFactory SaaS Services infringe any third party Intellectual Property Right in Canada or the United States.The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any:
      1. incorporation of any PathFactory SaaS Services into, or any combination, operation, or use of any PathFactory SaaS Services with, any products or services not provided or authorized by PathFactory;
      2. modification of any PathFactory SaaS Services other than by PathFactory or with PathFactory’s express written approval;
      3. unauthorized use of the PathFactory SaaS Services; or
      4. Losses covered by the Customer’s indemnity obligations in Section 10(b). THE FOREGOING IS PATHFACTORY’S SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

    1. If the PathFactory SaaS Services are, or in PathFactory’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third party Intellectual Property Right, or if Customer’s use of any PathFactory SaaS Services is enjoined or threatened to be enjoined, PathFactory may, at its option and sole cost and expense:
      1. obtain the right for Customer to continue to use the affected PathFactory SaaS Services materially as contemplated by this Agreement;
      2. modify or replace PathFactory SaaS Services, in whole or in part, to seek to make the PathFactory SaaS Services (as so modified or replaced) non-infringing, in which case such modifications or replacements will constitute PathFactory SaaS Services under this Agreement; or
      3. if PathFactory determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by PathFactory and PathFactory’s sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to any PathFactory SaaS Services that were to be provided after the effective date of termination.
      THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
  1. Customer Indemnity Customer will defend, indemnify and hold harmless PathFactory, its Affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “PathFactory Indemnitee“) from and against any and all Losses incurred by a PathFactory Indemnitee arising out of or relating to any Claim by a third party (other than an Affiliate of a PathFactory Indemnitee) that arise from or relate to:
    1. Customer Data;
    2. unauthorized use of the Services by Customer or any Permitted User; or
    3. use of the Services (or any part of them) by Customer or any Permitted User in combination with any third party software, application or service.
  2. Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to this Section 10. The Party seeking indemnification (the “Indemnitee“) will cooperate with the other Party (the “Indemnitor“) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10(c) will not relieve the Indemnitor of its indemnity obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

11. Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

  1. AMOUNT. NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF PATHFACTORY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SERVICES IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL PATHFACTORY’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
  2. TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO CUSTOMER OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

12. Term and Termination

  1. Term This Agreement will commence on the Effective Date and continue to be in effect until the termination or expiration of the last active Order Form which incorporates this Agreement by reference (the “Term“).
  2. Order Form Term. Each Order Form will set out the term of the Order Form and any provisions relating to the renewal of the Order Form.
  3. Termination for Cause. Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events:
    1. the other Party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 7) and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately;
    2. the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or
    3. any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership or dissolution.
  4. Effect of Termination. Upon the effective date of the expiration or termination of this Agreement (the “Termination Effective Date“):
    1. Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using PathFactory SaaS Services;
    2. Customer will return any PathFactory Property in its possession and certify in writing to PathFactory that the PathFactory Property has been returned;
    3. no new Order Forms may be agreed to or entered into by the Parties and all Order Forms will terminate; and
    4. all Fees due and payable and any amounts due to PathFactory are immediately due and are to be immediately paid by Customer to PathFactory. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
  5. Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights; and License Grants), Section 7 (Fees and Payment), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 13 (General Provisions), Section 12(d) (Effect of Termination) and this Section 12(e) (Survival).

13. General Provisions

  1. Notices Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: if to PathFactory, to the address corresponding to the applicable PathFactory entity indicated under Section 14(p), with all emails sent to legal@pathfactory.com, andif to Customer, to the current postal or email address that PathFactory has on file with respect to Customer. PathFactory may change its contact information by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with PathFactory current at all times during the Term.
  2. Assignment Customer will not assign or transfer this Agreement, or transfer or subcontract any of its rights or delegate any of its obligations under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of PathFactory. Any purported assignment or delegation by Customer to any third party in violation of this Section will be null and void. PathFactory may assign any of its rights, or delegate any of its obligations, under this Agreement to any third party without the consent of Customer. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
  3. Governing Law and Attornment The law that will govern this Agreement and apply in the event of any dispute or lawsuit arising out of or in connection with this Agreement, and the court that will have jurisdiction over any dispute or lawsuit will depend on where Customer is domiciled as follows:
      1. Customers domiciled in Canada or any country outside of the United States of America: the laws of the Province of Ontario and the applicable federal laws of Canada will govern, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.
      2. Customers domiciled in the United States of America: the laws of the State of Delaware and the applicable federal laws of the United States will govern, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in the State of Delaware, United States and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein.
    Notwithstanding the foregoing, PathFactory may: (i) seek remedies to collect unpaid Fees from Customer; and (ii) seek remedies with respect to a violation of PathFactory’s Intellectual Property Rights or Section 8 (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
  1. Export Restrictions Customer will comply with all export laws and regulations under Applicable Laws that may apply to its access to or use of the Services. PathFactory makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
  2. Construction.  Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise.  The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
  3. Force Majeure Event.  Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Services (“Force Majeure Event”). This Section does not apply to any of Customer’s obligations under Sections 7, 8, or 10.  In the event of any failure or delay caused by a Force Majeure Event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure Event.
  4. Severability.  Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
  5. Waiver.  A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
  6. Further Assurances. Each Party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
  7. Entire Agreement.  This Agreement (including all Order Forms) constitutes the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services; and (ii) do not override or form a part of this Agreement (including any Order Form).
  8. Amendments.  No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, PathFactory may amend this Agreement, at any time, in whole or in part by posting such amendment at https://pathfactory.com/legal/termsofservice and such amendment shall be effective as of the date posted, unless otherwise indicated by PathFactory.
  9. Customer Lists.  PathFactory may identify Customer by name and logo as a PathFactory customer on PathFactory’s website and on other promotional materials, including in a case study or white paper regarding Customer’s use of the PathFactory SaaS Services, upon receiving prior written approval from Customer. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.
  10. Order of Precedence. To the extent of a conflict between this Agreement and any Order Forms:
    1. in respect of Section 3 (Ownership; Reservation of Rights), Section 8 (Confidential Information), Section 9 (Warranty; Disclaimer), Section 10 (Indemnities), Section 11 (Limitation of Liabilities), Section 12(e) (Survival) and Section 13 (General Provisions, including this Section 13(m)), the terms of this Agreement, unless the Order Form expressly states that it modifies or varies the terms of this Agreement will prevail; and
    2. for all other Sections, the applicable Order Form will prevail.
  11. English Language.  The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the parties in the context of the performance of this Agreement be in English only. Les parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des parties, même lorsque rédigées par l’une des parties. Les parties confirment également que c’est la volonté expresse des parties que la présente entente, tout document s’y rattachant et toute communication entre les parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
  12. Insurance. PathFactory will, at its sole cost and expense, maintain appropriate insurance coverage, as determined by PathFactory in its sole discretion. Customer may request proof of insurance by contacting legal@pathfactory.com.
  13. PathFactory Contracting Entity.
If Customer is domiciled in: PathFactory Entity: Notices Address:
In Canada or any other country than the United States of America PathFactory Inc. 100 King St. W, Suite 5700 Toronto, ON M5X 1C7 ATTN: LEGAL
United States of America PathFactory Corp. 1775 I St., NW, Suite 1150, Washington, DC 20006 ATTN: LEGAL

Exhibit A

  1. “Administrator User Account” means the administrator account for use by the Administrator User.
  2. “Administrator Users” means those employees of Customer that are authorized by Customer to access and use the PathFactory SaaS Services on Customer’s behalf through an Administrator User Account.
  3. “Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
  4. “Aggregated Data” has the meaning set out in Section 3(a).
  5. “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
  6. “Claim” means any actual, threatened or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding or any other claim or demand.
  7. “Confidential Information” has the meaning set out in Section 8(a).
  8. “Customer Data” means the Customer Input and Customer Output.
  9. “Customer Input” means any data, information, content, records, and files that Customer (or any of its Permitted Users) loads or enters into the PathFactory SaaS Services (including through use of the PathFactory API) or otherwise provides to PathFactory, including Personal Information provided by Customer or Permitted Users.
  10. “Customer Indemnitee” has the meaning set out in Section 10(a)(i).
  11. “Customer Output” means any data information, content, records, and files that is outputted or generated from Customer’s use of the PathFactory SaaS Services and that is based upon Customer Input, excluding any Usage Metrics, PathFactory Property, and Aggregated Data (if applicable).
  12. “Customer User Accounts” means the Employee User Accounts and Administrator User Accounts together.
  13. “Discloser” has the meaning set out in Section 8(a).
  14. “Documentation” means PathFactory’s manuals, instructions or other documents or materials listed in an Order Form that PathFactory provides or generally makes available to all of its customers in any form or medium and which describe the functionality, components, features or requirements of the Services, including any aspect of the installation, configuration, integration, operation, use, support or maintenance of them.
  15. “Employee User Account” means each user account created by the Administrator User for its Employee Users.
  16. “Employee Users” means those active employees of Customer that are permitted by Customer to access and use the PathFactory SaaS Services.
  17. “Feedback” has the meaning set out in Section 3(c).
  18. “Fees” has the meaning set out in Section 7(a).
  19. “Force Majeure Event” has the meaning set out in Section 13(f).
  20. “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental, or self-regulatory department, authority, organization, agency, commission, board, tribunal, regulatory authority, dispute settlement panel or body, bureau, official, minister, Crown corporation, court or other law, rule or regulation-making entity having or purporting to have jurisdiction over any person or matter related to this Agreement.
  21. “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
  22. “Loss” or “Losses” means any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers.
  23. “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations.
  24. “Order Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer. Each executed Order Form will be incorporated into this Agreement by reference.
  25. “PathFactory API” means PathFactory proprietary application programming interface, and any related documentation all of which are designed to facilitate Customer’s access to and use of the PathFactory SaaS Services through interfaces between Customer applications and the PathFactory SaaS Services.
  26. “PathFactory Indemnitee” has the meaning set out in Section 10(b).
  27. “PathFactory Models” means PathFactory’s machine learning and AI-powered neural networks.
  28. “PathFactory Property” has the meaning set out in Section 3(b).
  29. “PathFactory SaaS Services” means the services through: (i) which PathFactory hosts and makes available the PathFactory Software and PathFactory API as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “PathFactory SaaS Services” includes the Support Services but does not include Professional Services.
  30. “PathFactory Software” means PathFactory’s proprietary software application that provides content intelligence, the ability to create personalized content experiences, connect content to revenue and pipeline impact, content recommendations, and key integration to marketing technologies through utilizing the PathFactory Models, including any Modifications made thereto.
  31. “Permitted User(s)” means Administrator Users and each Employee User and includes any Customer User Account.
  32. “Personal Information” means information about an identifiable individual transferred by Customer, or its permitted agents, to PathFactory hereunder.
  33. “Process” means to access, receive, collect, use, transmit, store, process, or otherwise handle.
  34. “Professional Services” means the consulting, training and other professional services described in an Order Form. The term “Professional Services” does not include PathFactory SaaS Services.
  35. “Recipient” has the meaning set out in Section 8(a).
  36. “Responsible Use Guidelines” means PathFactory’s responsible use guidelines that may be generally provided by PathFactory to all of its customers from time to time.
  37. “Services” means the PathFactory SaaS Services and the Professional Services, collectively, and any part of them.
  38. “Subcontractors” means third parties to which PathFactory may subcontract, in whole or in part, any of its rights or obligations under this Agreement, including Subprocessors.
  39. “Subprocessor” means any third party engaged by PathFactory to Process Personal Information.
  40. “Support Services” has the meaning set out in Section 6.
  41. “Termination Effective Date” has the meaning set out in Section 12(d).
  42. “Usage Metrics” means information and other data that is collected or generated by the PathFactory SaaS Services related to how individual users interact with the PathFactory SaaS Services, including frequency and duration of usage, specific features or functions accessed, user preferences and patterns of behavior and metadata, but expressly excluding any information or data that can (whether alone or when combined with other information or data) identify or reveal the identity of individual user.

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