Subscription Agreement

The following terms and conditions, together with the applicable Order Form, constitute a legally binding Subscription Agreement (the “Agreement”) between MetaFoundry and the Client for use of the Themis-Trace Service as defined below.

1. INTERPRETATION

1.1 Definitions.

(a) “MetaFoundry” means MetaFoundry Labs Inc.

(b) “Themis-Trace Service” means MetaFoundry’s proprietary online, cloud-based managed service, Themis-Trace, for which Client is granted rights of access and use in accordance with this Agreement, including offline or mobile components or applications as described in the Documentation and any other ancillary services available in connection therewith, as the Themis-Trace Service may be updated from time to time by MetaFoundry in its sole discretion.

(d) “Client Data” means electronic data and information submitted by or for Client to the Themis-Trace Service.

(e) “Confidential Information” means all confidential and proprietary information of a Party disclosed to the other Party, whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement (including pricing and other terms), the Themis-Trace Service and Documentation, business and marketing plans, technology and technical information, product designs, and business processes.

(f) “Data Protection Laws” means all laws and regulations, including laws and regulations of Canada (including the Personal Information Protection and Electronic Documents Act (Canada), the Canadian Anti-Spam Legislation and the Municipal Freedom of Information and Protection of Privacy Act (Ontario)) applicable to the Processing of Personal Information under the Agreement.

(g) “Documentation” means the user documentation for the Themis-Trace Service and MetaFoundry’s usage guides and policies, as updated from time to time.

(h) “Fees” mean Subscription Fees, and Professional Services Fees, as applicable.

(i) “Order Form” means the commercial document that references this Agreement which sets out the Fees and Subscription Term and other details relating to a Client’s Subscription.

(j) “Party” means MetaFoundry or Client and “Parties” means MetaFoundry and Client.

(k) “Personal Information” means any information relating to an identified or identifiable natural person as defined under applicable Data Protection Laws.

(l) “Processing” means any operation or set of operations which is performed upon Personal Information, whether or not by automatic means, such as collection, recording, organization, structuring, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.

(m) “Professional Services” means the implementation, training and other services provided by MetaFoundry to Client pursuant to a Statement of Work.

(n) “Professional Services Fees” means the fees for Professional Services set forth in the applicable Statement of Work.

(o) “Statement of Work” means a statement of work for Professional Services.

(p) “Subscription” means the right to use the Themis-Trace Service granted by MetaFoundry to a Client.

(q) “Subscription Fee” means the fee in the Order Form payable by Client for use of the Themis-Trace Service.

(r) “Subscription Term” means the term of a Subscription as specified in the Order Form, including any renewals thereof, in accordance with Section 2.1 hereof.

(s) “Support Services” means the technical support services for the Themis-Trace Service provided by MetaFoundry in accordance with Section 3.3 hereof.

(t) “User” means an individual who is authorized by Client to use the Themis-Trace Service or for whom the Themis-Trace Service has been provisioned, and to whom Client has supplied a user identification and password. Users may include, for example, employees, customers, consultants, contractors and agents of Client.

2. TERM AND TERMINATION

2.1 Subscriptions. Subscriptions commence on the Effective Date specified in the Order Form and continue for the Initial Subscription Term specified in the Order Form, unless terminated earlier as provided for in this Agreement. Unless otherwise agreed, Subscriptions shall automatically renew for additional periods equal to the initial billing frequency (monthly or annual) (each a “Renewal Term”) at the list price then in effect at the time of renewal, unless Client gives MetaFoundry written notice of non-renewal at least sixty (60) days prior to the end of an annual Subscription Term, or fifteen (15) days prior to the end of a monthly Subscription Term.

2.2 Termination. A Party may terminate this Agreement for cause (a) upon thirty (30) days’ written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period, or (b) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.

3. GRANT OF RIGHTS AND LICENSES, SUPPORT AND PROFESSIONAL SERVICES

3.1 Grant of Rights. Subject to the terms and conditions of this Agreement and payment of the applicable Fees, MetaFoundry hereby grants to Client a non-exclusive, worldwide, non-transferable, non-sublicensable right to (a) access and use (and to permit Users to access and use) the Themis-Trace Service, solely during the Term; and (b) access and use, and to permit Users to access and use, the Documentation as reasonably necessary to support the Client’s permitted use of the Themis-Trace Service during the Term.

3.2 Restrictions. Client shall not (and shall not allow Users or any third party to): (a) possess, download or copy the Themis-Trace Service or any part of the Themis-Trace Service, including but not limited to any component which comprises the Themis-Trace Service, but not including any output from the Themis-Trace Service; (b) knowingly interfere with service to any of MetaFoundry’s users, host or network, including by means of intentionally submitting a virus, overloading, flooding, spamming, mail bombing or crashing; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Themis-Trace Service and/or Documentation, except to the extent that enforcement is prohibited by applicable law; (d) circumvent any timing restrictions that are built into the Themis-Trace Service; (e) sell, rent, lend, transfer, distribute, license, or grant any rights in the Themis-Trace Service or Documentation in any form to any person without the written consent of MetaFoundry; (f) remove any proprietary notices, labels, or marks from the Themis-Trace Service or Documentation; (g) create any “links” to or “frame” or “mirror” of the Themis-Trace Service or any portion thereof; or (h) use the Themis-Trace Service in violation of applicable laws.

3.3 Support. During the Term, MetaFoundry, or its authorized support partner, will provide Support Services as per the Documentation. Client will have access to MetaFoundry’s technical support website and may use the website to submit service requests. MetaFoundry shall not be required to provide Support Services if Client is in default of any of its material obligations under this Agreement.

3.4 Professional Services. If agreed to in a Statement of Work, MetaFoundry will provide Professional Services for the Professional Services Fees in accordance with the terms and conditions in the applicable Statement of Work.

4. CLIENT DATA AND PERSONAL INFORMATION

4.1 Ownership. As between MetaFoundry and Client, Client exclusively owns all rights, title and interest in and to all Client Data. MetaFoundry does not acquire any rights, title or ownership interest of any kind whatsoever, express or implied, in any of the Client Data. Client hereby authorizes MetaFoundry to use Client Data as required to provide the Themis-Trace Service in accordance with the terms hereof.

4.2 Technical and Organizational Safeguards. In connection with the provision of the Themis-Trace Service, MetaFoundry will maintain commercially reasonable administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of Client Data. Those safeguards will include, but will not be limited to, measures for preventing access, use, modification or disclosure of Client Data by MetaFoundry personnel except (a) to provide the Themis-Trace Service and prevent or address service or technical problems, (b) as compelled by law and upon identification of lawful authority, or (c) as expressly permitted in writing by Client. MetaFoundry shall not access Client Data except to provide the Themis-Trace Service and prevent or address service or technical problems, or at Client’s request in connection with customer support matters.

4.3 Client Data and Portability. Upon request by Client made during the Subscription Term or within thirty (30) days after the effective date of termination of this Agreement, MetaFoundry will provide Client with a copy of Client Data in a commonly used format. After such 30-day period, MetaFoundry will have no obligation to maintain or provide any Client Data, and will thereafter delete or destroy all copies of Client Data in its systems or otherwise in its possession or control as provided in the Documentation, unless legally prohibited.

4.4 MetaFoundry’s Processing of Personal Information. MetaFoundry shall secure Personal Information with all necessary safeguards appropriate to the level of sensitivity of the Personal Information. MetaFoundry shall only Process Personal Information on behalf of and in accordance with Client’s documented instructions and applicable Data Protection Laws for the following purposes: (a) Processing in accordance with the Agreement; (b) Processing initiated by Client’s Users or customers in their use of the Themis-Trace Service; and (c) Processing to comply with other documented reasonable instructions provided by Client where such instructions are consistent with the terms of the Agreement and applicable Data Protection Laws. MetaFoundry shall ensure that its personnel engaged in the Processing of Personal Information: (x) are informed of the confidential nature of the Personal Information, (y) have received appropriate training on their responsibilities, and (z) are under contractual or statutory obligations to maintain the confidentiality of Client Data. MetaFoundry shall take commercially reasonable steps to ensure the reliability of any MetaFoundry personnel engaged in the Processing of Personal Information.

4.5 Data Breach. Upon becoming aware of any unlawful access to any Personal Information, any unauthorized access to such facilities or equipment resulting in loss, disclosure or alteration of any Personal Information, or any actual loss of or suspected threats to the security of Personal Information (including any physical trespass on a secure facility, computing systems intrusion/hacking, loss/theft of a computing device, storage media or printed materials, or other unauthorized access) (each a “Security Incident”), MetaFoundry will promptly notify Client of the Security Incident (and in all circumstances at least as soon as it reports to similarly situated customers of Client, but in any event as soon as reasonably possible in the circumstances), and will investigate or perform required assistance in the investigation of the Security Incident and provide Client with detailed information about the Security Incident. MetaFoundry will take all commercially reasonable steps to mitigate the effects of the Security Incident, or assist Client in doing so; and will provide prior notice to Client of, and will not undertake any, proposed communications to third parties related to a Security Incident involving Personal Information without Client’s prior written approval, not to be unreasonably withheld, conditioned or delayed. MetaFoundry will work with and coordinate with Client on any such notices in any event. MetaFoundry will comply with this Section 4.5 at MetaFoundry’s cost unless the Security Incident arose from Client’s negligent or willful acts or MetaFoundry’s compliance with Client’s express written instructions.

5. CLIENT RESPONSIBILITIES

5.1 Users. Client is responsible for all activities that occur in User accounts and for its and its Users’ compliance with this Agreement. Client shall: (a) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data and the means by which Client acquired Client Data; (b) use commercially reasonable efforts to prevent unauthorized access to, or use of, the Themis-Trace Service, and notify MetaFoundry promptly of any such unauthorized access or use; and (c) use the Themis-Trace Service only in accordance with the Documentation and applicable laws and government regulations.

5.2 Equipment. Client is solely responsible for acquiring, servicing, maintaining and updating all equipment, computers, software and communications services (such as Internet access) that are required to allow Client to access and use the Themis-Trace Service and for all expenses relating thereto. Client agrees to access and use, and shall ensure that all Users access and use, the Themis-Trace Service in accordance with any and all operating instructions or procedures that may be issued by MetaFoundry from time to time.

6. FEES AND PAYMENT TERMS

6.1 Fees. Client shall pay the Fees set out in the applicable Order Form. Fees are charged on a per-site basis in accordance with the selected modules.

6.2 Billing. Fees are payable in advance for each billing period. All invoices are due upon receipt.

6.3 Late Payment. MetaFoundry may charge interest on overdue amounts at 1.5% per month (18% per annum), or the maximum permitted by law, whichever is less. MetaFoundry may suspend access to the Themis-Trace Service upon written notice if any undisputed amount remains outstanding.

6.4 Taxes. Fees are exclusive of applicable taxes. MetaFoundry will collect and remit taxes as required by applicable law. Where MetaFoundry determines that a transaction is not subject to tax collection by MetaFoundry, Client shall be solely responsible for self-assessing and remitting any applicable taxes in its jurisdiction.

6.5 Fee Changes. MetaFoundry may adjust Subscription Fees upon not less than ninety (90) days' prior written notice. Adjustments take effect at the start of Client's next Renewal Term.

7. INTELLECTUAL PROPERTY

7.1 The Themis-Trace Service. Subject to the limited rights expressly granted hereunder, MetaFoundry reserves all rights, title and interest in and to the Themis-Trace Service, including all related intellectual property rights. No rights are granted to Client hereunder other than as expressly set forth in this Agreement. MetaFoundry retains all right, title and interest in and to the Themis-Trace Service at all times, and regardless of the form or media in or on which the original or other copies may subsequently exist. Finally, any suggestions, ideas or inventions that Client, its employees or agents, voluntarily and optionally disclose to MetaFoundry through any means will be used, or not used, at MetaFoundry’s sole discretion; and, MetaFoundry will have no obligation to Client, its employees and/or agents regarding any ideas or inventions that Client, its employees and/or agents disclose through such means.

7.2 Usage Data. Notwithstanding anything to the contrary in this Agreement, Client acknowledges that the Themis-Trace Service may provide Usage Data (as hereinafter defined) to MetaFoundry and MetaFoundry may monitor Client’s use of the Themis-Trace Service and collect and compile aggregated and anonymized data, information, analytics and diagnostic statistics relating to the provision and operation, and Client’s use, of the Themis-Trace Service (“Usage Data”). As between MetaFoundry and Client, all right, title, and interest in Usage Data, including all intellectual property rights therein, belong to and are retained solely by MetaFoundry. MetaFoundry may use Usage Data to support (including to improve) the Themis-Trace Service, develop new products and services, and for any other business purpose, provided that the Usage Data does not contain any Personal Information or other user identifier and is not associated with Client or any User.

7.3 Feedback. Client may provide reasonable feedback to MetaFoundry including, but not limited to, suitability, problem reports, suggestions, enhancement request, recommendation, correction, and other information with respect to the operation of the Themis-Trace Service (“Feedback”). Client hereby grants to MetaFoundry a fully paid-up, royalty-free, worldwide, assignable, transferable, sublicenseable, irrevocable, perpetual license to use or incorporate into the Themis-Trace Service, the Documentation and any other MetaFoundry products or services, or for any other purposes, any Feedback provided by Client or its Users.

8. CONFIDENTIALITY

Each Party acknowledges that all Confidential Information consists of confidential and proprietary information of the disclosing Party. Each Party shall, and shall cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and shall use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information. Each Party agrees not to make use of Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any third person other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.

9. WARRANTIES AND DISCLAIMERS

9.1 Limited Warranties. MetaFoundry hereby represents and warrants to Client that:

(a) MetaFoundry has all the rights, title and interest necessary to grant the rights and licenses in the Themis-Trace Service to the Client hereunder; and

(b) the Themis-Trace Service will function and perform substantially in accordance with the Documentation during the Subscription Term hereof.

9.2 Warranty Disclaimers. EXCEPT FOR THE EXPRESS WARRANTIES PROVIDED HEREIN, METAFOUNDRY PROVIDES THE THEMIS-TRACE SERVICE ON AN “AS IS” AND “AS AVAILABLE” BASIS. METAFOUNDRY MAKES NO OTHER REPRESENTATIONS OR WARRANTIES, AND THERE ARE NO CONDITIONS, GUARANTEES, REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, (INCLUDING WITHOUT LIMITATION ANY EXPRESS OR IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, PERFORMANCE, RESULTS, FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY OR ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM A COURSE OF DEALING OR USAGE OF THE TRADE) AS TO, ARISING OUT OF OR RELATED TO THE FOLLOWING: (I) THIS AGREEMENT; (II) THE THEMIS-TRACE SERVICE; OR (III) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION OR CLIENT DATA TRANSMITTED TO OR FROM THE THEMIS-TRACE SERVICE. METAFOUNDRY ALSO DISCLAIMS ALL LIABILITY WITH REGARD TO CLIENT’S VIEWING OF ANY WEB SITES THAT MAY BE LINKED FROM THE THEMIS-TRACE SERVICE. METAFOUNDRY DOES NOT REPRESENT OR WARRANT THAT THE THEMIS-TRACE SERVICE WILL MEET ANY OR ALL OF CLIENT’S PARTICULAR REQUIREMENTS, THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE THEMIS-TRACE SERVICE WILL BE RELIABLE, THE QUALITY OF ANY PRODUCTS OBTAINED OR PURCHASED THROUGH THE USE OF THE THEMIS-TRACE SERVICE WILL MEET CLIENT’S EXPECTATIONS OR THAT THE THEMIS-TRACE SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED. THIS DISCLAIMER OF WARRANTY CONSTITUTES AN ESSENTIAL PART OF THIS AGREEMENT.

10. INDEMNIFICATION BY CLIENT

Client will defend MetaFoundry against any claim, demand, suit or proceeding made or brought against MetaFoundry by a third party alleging that Client Data, or Client’s use of the Themis-Trace Service in breach of this Agreement, infringes or misappropriates such third party’s intellectual property rights or violates applicable law (a “Claim”), and will indemnify MetaFoundry from any damages, legal fees and costs finally awarded against MetaFoundry as a result of, or for any amounts paid by MetaFoundry under a court-approved settlement of, a Claim, provided that MetaFoundry (a) promptly gives Client written notice of the Claim, (b) gives Client sole control of the defense and settlement of the Claim (except that Client may not settle any Claim unless it unconditionally releases MetaFoundry of all liability), and (c) gives Client all reasonable assistance, at Client’s expense.

11. LIMITATION OF LIABILITY.

11.1 Exclusion of Indirect and Consequential Damages. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS).

11.2 Limitation of Liability for Direct Damages. SUBJECT TO SECTION 11.3 HEREOF, IN NO EVENT WILL EITHER PARTY’S MAXIMUM CUMULATIVE LIABILITY UNDER THIS AGREEMENT ARISING OUT OF OR RELATED TO THIS AGREEMENT OR RELATING TO THE SUBJECT MATTER HEREOF FOR ALL CLAIMS, COSTS, LOSSES AND DAMAGES EXCEED THE LESSER OF (A) $7,500.00, OR (B) THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CLIENT HEREUNDER IN THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE CLAIM OR LIABILITY. THE EXISTENCE OF MORE THAN ONE CLAIM SHALL NOT ENLARGE THIS CUMULATIVE LIMIT.

11.3 Certain Damages Not Excluded or Limited. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS HEREUNDER, (II) INDEMNIFICATION CLAIMS, (III) DAMAGES ARISING FROM INFRINGEMENT OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (IV) ANY CLAIMS FOR NON-PAYMENT, (V) FRAUD OR WILLFUL MISCONDUCT, OR (VI) BODILY INJURY OR DEATH.

12. MISCELLANEOUS

12.1 Assignment. Client may not assign any of its rights or obligations hereunder, whether by operation of law, change of control or otherwise, without the prior written consent of MetaFoundry. Notwithstanding the foregoing, MetaFoundry may assign this Agreement in its entirety, without consent of the Client, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets to which this Agreement relates. Any attempt by Client to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.

12.2 Notice. Any notice required or permitted to be given in accordance with this Agreement will be effective only if it is in writing and sent using: (a) the Themis-Trace Service; (b) certified or registered mail; or (c) a nationally recognized overnight courier, to the appropriate Party at the address set forth on the Order Form, with a copy, in the case of MetaFoundry, to support@themis-trace.com. Each Party hereto expressly consents to service of process by registered mail. Either Party may change its address for receipt of notice by notice to the other Party through a notice provided in accordance with this Section 12.2 (Notices). Notices are deemed given upon receipt if delivered using the Themis-Trace Service, two (2) Business Days following the date of mailing, or one (1) Business Day following delivery to a courier.

12.3 Email Notifications. From time to time, MetaFoundry may use a third party application for data submission and such application provides email notifications to Client related to Client’s input of data into the Themis-Trace Service. Client is responsible for ensuring that Client’s email address is accurate and complete and that such information remains current at all times during the Term. In order to ensure successful delivery of such email notifications, Client is advised to add domains provided by MetaFoundry to Client’s safe senders list to prevent email messages from being moved to Client’s junk or spam folder. MetaFoundry is not liable for any damages whatsoever caused by or resulting from the unsuccessful delivery of email notifications to Client as a result of email notifications being directed to spam or junk filters, incorrect email addresses, or other acts or omissions of Client.

12.4 Governing Law. This Agreement shall be construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein and each of the Parties hereby irrevocably attorns to the exclusive jurisdiction of the courts of such Province. The application of the United Nations Convention on Contracts for the International Sale of Goods to this Agreement is expressly excluded and does not apply to this Agreement.

12.5 Entire Agreement. This Agreement, together with the applicable Order Form, is the entire agreement between the Parties made to date regarding the subject matter and supersedes any prior agreements or understandings between the Parties relating to its subject matter. No modification or variation of this Agreement shall be effective unless in writing signed by the Parties.