SALES ORDER TERMS
Agreement to Terms
By submitting payment for the Services described in this Sales Order, Customer acknowledges and agrees to be bound by the OnDeck Innovation and Discovery Terms and Conditions available at https://ondeck-ai.com/terms, which are incorporated herein by reference. Payment shall constitute full acceptance of this Sales Order and the Terms and Conditions.
OnDeck Innovation and Discovery Terms and Conditions
PLEASE READ THESE ONDECK INNOVATION AND DISCOVERY TERMS AND CONDITIONS (“TERMS”) CAREFULLY. BY SUBMITTING PAYMENT FOR SERVICES PROVIDED BY ONDECK FISHERIES AI INC., YOU OR THE ENTITY THAT YOU REPRESENT ("CUSTOMER") ARE UNCONDITIONALLY CONSENTING TO BE BOUND BY THESE TERMS AND THE TERMS OF THE SALES ORDER. UPON ACCEPTANCE OF SUCH SALES ORDER BY ONDECK, CUSTOMER AND ONDECK FISHERIES AI INC. (“ONDECK”) BECOME PARTIES TO AN AGREEMENT CONSISTING OF SUCH SALES ORDER AND THESE TERMS (THE "AGREEMENT"). IF YOU DO NOT UNCONDITIONALLY AGREE TO ALL OF THE TERMS OF THIS AGREEMENT, PLEASE DO NOT SUBMIT A SALES ORDER, AS YOU WILL HAVE NO RIGHT TO USE THE SERVICES SET FORTH IN THE SALES ORDER.
SERVICES
OnDeck shall during the Discovery Term identified on the Sales Order (“Sales Order Term”), provide the OnDeck SaaS innovation and discovery subscription service (“SaaS Services”) to Customer, and shall provide the data generated by Customer’s use of the SaaS Services (“Output”) to Customer, all in accordance with the terms and conditions of the Agreement. OnDeck may provide certain professional services (“Professional Services”) to Customer as described in the Sales Order. OnDeck may provide certain maintenance and support services (“Support”) to Customer as described in the Sales Order. “Services” shall mean the services that are to be provided to Customer under this Agreement, as set forth in the Sales Order, including the SaaS Services, together with any Support and Professional Services.
The Services and Output are provided solely for Customer’s internal, non-commercial use, so that Customer can evaluate the Services on a personal, non-transferable, non-exclusive basis in order to determine if Customer wishes to enter into a further separate commercial agreement with OnDeck (“Purpose”).
OnDeck may in its sole discretion modify the SaaS Services at any time to maintain or improve the effectiveness of the SaaS Services. OnDeck will host the SaaS Services and information and data provided by Customer and uploaded into the Services (“Customer Data”) on servers owned or operated by or on behalf of OnDeck.
CUSTOMER OBLIGATIONS
The Customer shall supply, at its own expense, all equipment, devices, and software (“Customer Equipment”) necessary to receive the Services. OnDeck shall not be responsible for the performance, accuracy or adequacy of the Customer Equipment or its compatibility with the Services.
Customer will be solely responsible for all Customer Data provided to OnDeck. Customer shall be responsible for its use of the Services and agrees not to contravene any applicable federal, provincial, state or local laws or regulations in connection with its rights and obligations under this Agreement. Customer is solely responsible for conclusions drawn from its use of the Services and Output.
Customer shall not: (a) make copies of any materials owned by OnDeck; (b) undertake any de-compilation, disassembly, reverse engineering techniques or similar methods to determine any design, structure, concepts or construction method of the Services; (c) access any portion of the Services other than in accordance with this Agreement; or (d) lend, rent, sell, transfer or distribute the Services (or any portion thereof) as an application service provider, service bureau, or rental source for any third party.
FEES AND PAYMENTS
Customer shall pay Service Fees to OnDeck as set forth in the Sales Order (“Fees”). Customer shall pay undisputed invoices within sixty (60) days of the invoice date. Overdue accounts shall be charged interest at the annualized prime rate as published from time to time by The Bank of Montreal.
Customer shall be responsible for any sales, excise, service, value-added, consumption or use taxes levied on Customer or otherwise imposed on Customer by a governmental authority in connection with its payment of the Fees or on receipt of Services from OnDeck under the Agreement.
PROPRIETARY RIGHTS
As between OnDeck and Customer, OnDeck holds and shall retain sole and exclusive ownership of: (a) the Services and OnDeck’s Confidential Information; (b) the Output (excluding any Customer Data therein); (c) its know-how, ideas, concepts, procedures, routines, techniques, methods, systems, processes, models, templates, tools, generalized features of the structure, sequence and organization of software, user interfaces, screen designs and the like, and all copies and derivative works thereof; and (d) all intellectual and industrial property rights and rights of a similar nature including all rights in and to, patents, trademarks, copyrights, database rights, rights pertaining to AI models and algorithms, industrial design rights, rights pertaining to trade secrets and confidential information, publicity rights, personality rights, moral rights, and other intellectual property rights whether registered or not and all applications, registrations, renewals and extensions pertaining to the foregoing (“Intellectual Property Rights”). Customer shall not take any action inconsistent with such title and ownership.
As between OnDeck and Customer, Customer holds and shall retain sole and exclusive ownership of Customer’s Confidential Information, including all Customer Data, and all copies thereof, and all Intellectual Property Rights in and to the foregoing. OnDeck shall not take any action inconsistent with such title and ownership. Customer hereby grants to OnDeck a non-exclusive, worldwide, fully paid-up, royalty-free license to use the Customer Data during the Sales Order Term for the purpose of providing the Services and the Output to the Customer.
Customer may from time to time provide suggestions, comments, ideas, enhancement requests, recommendations or other feedback to OnDeck with respect to the Services (“Feedback”). Customer shall, and hereby does, grant to OnDeck a non-exclusive, worldwide, perpetual, irrevocable, transferable, sublicensable, royalty-free, fully paid up license to use and exploit the Feedback for any purpose OnDeck, at its sole discretion, deems fit.
CONFIDENTIALITY AND PRIVACY
Customer and OnDeck (each a “Receiving Party”) will hold the Confidential Information of the other (the “Disclosing Party”) in strict confidence, and Receiving Party will not use or disclose the Confidential Information of the Disclosing Party except as expressly provided in this Agreement. Each Receiving Party may only disclose Confidential Information received by it from a Disclosing Party to its employees, professional advisors, and subcontractors that need to know such Confidential Information in connection with the Purpose and who are under obligations of confidentiality to the Receiving Party no less strict than those set forth herein. Except as set out herein, a Receiving Party may only use and copy the Disclosing Party’s Confidential Information to the extent necessary for the Purpose, to obtain the benefit of this Agreement, to comply with its obligations hereunder or to the extent necessary for it to exercise its rights hereunder. The Receiving Party acknowledges and accepts that it is and will be fully responsible and accountable for the compliance of employees, personnel, professional advisors, and subcontractors with their respective confidentiality obligations as contemplated by this Agreement.
The obligations of the Receiving Party pursuant to this Agreement shall not extend to information that the Receiving Party can establish by written evidence that: (i) is or becomes publicly known through no wrongful act of the Receiving Party; (ii) the Receiving Party can show was rightfully in its possession without obligation of confidentiality; (iii) the information was approved by the Disclosing Party for disclosure in a written document signed by a senior officer of the Disclosing Party; (iv) is required to be disclosed by law or any governmental authority having jurisdiction; (iii) is independently developed by Receiving Party without reference to the Disclosing Party’s Confidential Information.
Upon written request from Disclosing Party, the Receiving Party shall return, or at the Disclosing Party’s discretion, destroy all copies of Disclosing Party’s Confidential Information in its possession, power or control, in a manner that assures the Confidential Information is rendered unrecoverable, provided however that the provisions of this paragraph will not apply to archival or backup copies of data retained on tapes, hard drives or other storage media. Notwithstanding any deletion of Confidential Information, Receiving Party’s confidentiality obligations hereunder shall survive expiration or termination of this Agreement for a period of five (5) years.
In the event Customer provides information about an identifiable information or other information that is subject to applicable privacy legislation (“Personal Information”) to OnDeck, OnDeck will only handle or otherwise use Personal Information for the purpose of providing the Services to Customer. Customer shall comply with all applicable privacy legislation in connection with their collection, use or disclosure of Personal Information, and is solely responsible for obtaining all consents and notifications required under applicable privacy legislation to enable OnDeck to use such Personal Information as contemplated in this Agreement.
Customer and OnDeck acknowledge and agree that any violation of the provisions of Section 5 of these Terms may cause irreparable damage or injury to the other party, the exact amount of which may be impossible to ascertain, and that for such reason such other party may seek equitable relief restraining the violating party from breaching, and requiring the violating party to comply with, its obligations under Section 5 of these Terms.
REPRESENTATIONS AND WARRANTIES
EXCEPT TO THE EXTENT NOT ALLOWED BY APPLICABLE LAW OR SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES AND OUTPUT ARE PROVIDED “AS IS”. ONDECK DISCLAIMS ALL WARRANTIES WITH RESPECT TO THE SERVICES AND OUTPUT, INCLUDING ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD TITLE, SATISFACTORY QUALITY OR NON-INFRINGEMENT, OR THOSE ARISING BY STATUTE, OPERATION OF LAW, USAGE OF TRADE, COURSE OF DEALING OR OTHERWISE. ONDECK MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, THE OUTPUT OR THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
Each party represents and warrants to the other party that: (a) it is duly organized, validly existing and in good standing under the laws of its jurisdiction; (b) it has the rights, power, and privileges to execute, deliver and perform its obligations under this Agreement; (c) the execution, delivery and performance of this Agreement have been duly authorized; and (d) neither the entering into of this Agreement, nor the carrying out of the obligations hereunder will result in a violation of (i) any agreement, license or other instrument or duty to which Customer or OnDeck is a party or is bound, or (ii) any applicable law.
INDEMNIFICATION AND LIMIT OF LIABILITY
OnDeck agrees to defend or, at its option, settle, any demand, action, suit or proceeding or any other claim or demand and any and all damages, fines, penalties, losses, liabilities (including settlements and judgments), costs and expenses (“Claims”) brought against Customer by a third party to the extent that it is based on an assertion that the Services infringe, violate or misappropriate such third party's Intellectual Property Rights, and shall indemnify Customer against all Claims finally awarded against Customer which result therefrom (an “IP Indemnity Claim”). If the OnDeck Solution becomes the subject of an IP Indemnity Claim, or in OnDeck’s opinion is likely to become the subject of such a claim, then OnDeck may terminate the Sales Order and refund Customer any prepaid Fees.
Customer agrees to defend or, at its option, settle, any Claim brought against OnDeck by a third party to the extent that it is based on an assertion that the Customer Data or Customer Equipment, or OnDeck’s use thereof infringes, violates or misappropriates such third party's Intellectual Property Rights, and shall indemnify OnDeck against all Claims finally awarded against OnDeck which result therefrom.
The liability of OnDeck to Customer for damages will not in the aggregate exceed the Fees paid by Customer to OnDeck under the Sales Order (the “Liability Cap”).
A party shall be liable only for direct damages and not for any damages in the nature of economic, consequential, incidental, special, punitive or exemplary damages, including loss of profit, loss of business, loss of data, loss of use or opportunity, increased overhead or business interruption losses, even if the party has been advised of the possibility of such damages. The foregoing exclusions shall not apply for damages suffered by OnDeck as a result of Customer’s commercial use of the Services or Output.
TERM AND TERMINATION
The Agreement shall become effective on the Sales Order Effective Date and expire at the end of the Sales Order Term.
The Agreement may be terminated by either party:
if the other party materially breaches a provision of this Agreement and (i) fails to cure such breach within ten (10) days of the receipt of written notice of such breach, or (ii) the breach cannot be cured; or
upon the occurrence of any of the following events to the other party: winding-up, bankruptcy, reorganization, arrangement, liquidation, dissolution or composition of the rights of its shareholders or creditors, or filing of an application therefor, or other commitment of any affirmative act of insolvency or ceasing to carry on business.
In addition to the foregoing, the Agreement shall automatically terminate if:
the parties enter into a further separate commercial agreement for a non-discovery version of the Services; or
Customer uses the Services or Output for commercial purposes.
Termination or expiration of this Agreement will automatically revoke the access and use rights granted to Customer hereunder. All provisions of this Agreement which either expressly or by their nature are intended to survive the termination or expiration of this Agreement shall so survive.
GENERAL
Governing Law. This Agreement will be governed by and construed in accordance with the laws of the Province of British Columbia and the laws of Canada applicable therein. The Parties hereby submit to the non-exclusive jurisdiction of the courts of the Province of British Columbia for any legal action arising out of or related to this Agreement.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with regard to the subject matter hereof. No waiver, consent, modification, or change of terms of this Agreement shall bind either party unless in writing signed by both Parties, and then such waiver, consent, modification, or change shall be effective only in the specific instance and for the specific purpose given.
Amendments and Waiver. No modification to this Agreement is valid or binding unless set forth in writing and fully executed by each of the Parties whose rights or obligations hereunder are changed by such modification and no waiver of any breach of any term or provision of this Agreement is effective or binding unless made in writing and signed by the party purporting to give the same and, unless otherwise provided, is limited to the specific breach waived. This Agreement cannot be varied or waived by the Parties by any oral agreement or through a course of dealing or conduct or by any equitable principle or other legal doctrine.
Severability. To the extent that any provision of this Agreement is deemed to be invalid, illegal or unenforceable, such provision will be severed and deleted or limited so as to give effect to the intent of the parties insofar as possible and the parties will use their best efforts to substitute a new provision of like economic intent and effect for the illegal, invalid or unenforceable provisions and the remainder of this Agreement will remain binding upon the parties.
Assignment. This Agreement shall be binding upon and enure to the benefit of the parties hereto and their respective successors and permitted assigns. OnDeck may assign this Agreement to an affiliate, or to any person to which it may merge, amalgamate, or sell its shares or otherwise transfer a substantial portion of its business or assets, or outsource or divest a particular department or line of business, without the necessity of obtaining Customer’s written consent. Customer may not assign this Agreement or any right or obligation hereunder to any person, without OnDeck’s prior written consent, which consent will not be unreasonably withheld.
Force Majeure. Excepting any obligation to make payment hereunder, the obligations of each party under this Agreement shall be suspended during the period and to the extent that such party is prevented or hindered from complying with them by a cause beyond its reasonable control, provided that such failure or delay could not have been prevented by reasonable precautions, cannot reasonably be circumvented by the non-performing party through the use of alternate sources, work around plans or other means, and such party continues to use commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay.
No Agency; Independent Contractors. Nothing contained in this Agreement shall be deemed to constitute either party as the agent or representative of the other party, or both Parties as joint venturers or partners for any purpose.
Notices. Any notice or other communication to be given in connection with this Agreement will be given in writing and will be given by personal delivery, registered mail or by email addressed to:
in the case of a notice to Customer, the Billing Contact identified on the Sales Order.
in the case of a notice to OnDeck, at:
Attention: Alexander Dungate, Chief Executive Officer
Address: 289-2366 Main Mall, Vancouver, BC V6T1Z4, CANADA
Email: legal@ondeck-ai.com
or to such other address as may be designated by notice given by either party to the other party in the same manner. Any notice or other communication given by personal delivery will be conclusively deemed to have been given on the day of actual delivery thereof or, if by registered mail, on the tenth business day following the posting thereof, or if given by email, on the day of transmittal thereof if given during the normal business hours of the recipient and on the business day during which such normal business hours next occur if not given during such hours on any day.
Construction. In this Agreement, unless the context indicates a contrary intention: (a) words suggesting the singular include the plural and vice versa; (b) headings are for ease of reference only and will not affect the interpretation of this Agreement; (c) use of the words “includes” or “including” means “including, without limitation”; and (d) any reference to a statute will mean the statute in force as at the date hereof, as the same may be amended, re-enacted, consolidated and/or replaced, from time to time, and any successor statute thereto, unless otherwise expressly provided.