January 1, 2023
This Subscription Agreement ("Agreement") is made effective the as of the Commencement Date between JWN Media, a geoLOGIC company ("JWN" or "Licensor") and the person or company who has paid the subscription fee for access to the Service (the "Subscriber");
WHEREAS the parties wish to confirm the terms and conditions pursuant to which Licensor will license the use of the Website and Service (as defined herein);
AND WHEREAS by accessing and continuing to access the Website, the Subscriber agrees to be bound by the terms and provisions of this Agreement;
NOW THEREFORE in consideration of the mutual covenants and agreements contained in this Agreement and other good and valuable consideration passing among the parties, the receipt and adequacy of which is hereby acknowledged, the parties agree as follows:
1.1 In this Agreement unless the context requires otherwise:
"Activation Date" means the date that Licensor confirms the Website has been activated on a Subscriber's device;
"Additional User" means any additional users over and above the number of Licensed Users;
"Additional User Fee" means the fee charged by JWN for each Additional User;
"Annual Fee" means the fee set out in the Agreement for a full year commencing at the date of activation;
"Annual Period" means the year commencing on the Activation Date of the subscription;
"Authorized Users" means (a) any named employee of the Subscriber as set out in the Agreement or as otherwise advised by the Subscriber; (b) the number of distinct users within the Subscriber's organization who may access the Website under the Subscription, as indicated by paying the applicable Subscription Fee for the number of Authorized Users uniquely identified;
"CBOC" Copyright Board of Canada, Copyright Act R.S.C., 1985, c. C-42;
"Charges" means the subscription fee and/or Additional User Fees applicable to the subscription;
"Data" means any financial, technical or other information from time to time available from the Website, the compilation, selection and arrangement of that data, databases compiled from that data and computer readable file copies of documents created by the Website;
"Default" means any breach of the obligations of JWN (including, but not limited to fundamental breach or breach of a fundamental term) or any default, act, omission, negligence or statement of JWN, its employees, agents or sub-contractors in connection with or in relation to the subject matter of this Agreement and in respect of which JWN is liable to the Subscriber;
"Documentation" means any documentation (whether in electronic or hardcopy form) provided by JWN pursuant to the Services;
"Intellectual Property" means all patents, trademarks, service marks, registered designs, utility models, applications for the rights to apply for any of the foregoing, unregistered design marks, trade or business names, copyright and database rights, any rights in any invention, discovery or process, confidential information or know-how and documentation in any part of the world, applications for any of the foregoing and all revivals, extensions and renewals of the same;
"Liability Sum" is the value of the Subscriber's current Annual Fee;
"Licence Period" means the period detailed in the Subscription Agreement and any extension to the same as agreed by JWN in writing;
"Materials" means the Website, the Data and the Documentation;
"Monthly Fee" means the fee set out in the Agreement for a full year commencing at the date of activation payable in monthly instalments;
"Modifications" means improvements, modifications, adaptations, error corrections, fixes, enhancements, updates and upgrades to the Website. For the avoidance of doubt, Modifications shall not include any new information modules that may be offered by JWN as part of the Services;
"Normal Working Hours" means the hours between 8 a.m. and 4 p.m. MST each Working Day;
"Payment Date" means the date specified for payment by the Subscriber as set out in the Agreement;
"Request" means a search query by the Subscriber, submitted via the Website, to access information provided on/within the area of the Website;
"Service" means any and all of the services provided by JWN that have been selected by the Subscriber, as identified on Page 1 of the Order Confirmation;
"Subscriber" means (a) the subscriber detailed on the Agreement; (b) the person who has paid the subscription fee for access to the website
"System" means any website, or services of JWN embodied in or used to provide the Services;
"Website" means any website or web platform provided by JWN in connection with the Services as indicated in the Agreement;
"Working Day" means each day of the week excluding Saturdays, Sundays and public holidays or other statutory holidays.
JWN agrees to provide the Service in accordance with the terms and conditions of this Agreement.
3. GRANT OF LICENCE
3.1 JWN grants to the Subscriber a non-exclusive, non-transferable licence solely for the Subscriber's own internal data processing purposes to access the Website and the Data contained therein and to use the Documentation and the Data in conjunction with the use of the Website in accordance with this Agreement./p>
3.2 The grant of licence under this clause 3 is subject to any limit to the number of Licensed Users or any other restriction specified in the Agreement.
3.3 All copies of the Materials which are downloaded from the Website shall remain the property of JWN and the provisions of this Agreement shall apply to all such copies as they apply to the originals.
3.4 JWN shall use reasonable efforts to provide the Subscriber with online access to the Data 24 hours a day for the duration of this Agreement.
4. RESTRICTIONS ON USE OF MATERIALS AND WEBSITE
Only Licensed Users shall be authorised to use the Services, up to the maximum number of Licensed Users specified in the Agreement.
5. GENERAL OBLIGATIONS
5.1 JWN and the Subscriber shall comply with all its obligations set out in this Agreement.
5.2 Each party shall act reasonably and in good faith in exercising its rights and performing its obligations under this Agreement.
6. ADDITIONAL SUBSCRIBER OBLIGATIONS
6.1 The Subscriber or Licensed User shall:
6.1.1 use the Materials only for its own internal data processing purposes. Extracts of the Materials may be used for presentations to third parties provided appropriate consent and attribution is made to JWN;
6.1.2 not, except as permitted by clause 6.1.4, alter or modify the whole or any part of the Materials;
6.1.3 not use the whole or a substantial part of the Materials to produce reports, documents, works of authorship or written materials for the purpose of archiving, copying or storing the Data for use following the termination of this Agreement. Data will be considered to be a substantial amount if that amount has independent commercial value or could be used as a substitute for any service provided by JWN or is marketed by JWN;
6.1.4 not, save solely for the purposes expressly permitted by and in accordance with the CBOC, cause or permit the reverse engineering, disassembly, de-compilation, translation or adaptation of the whole or any part of the Materials;
6.1.5 not assign, transfer, sell, lease, rent, charge or otherwise deal in or encumber the Materials;
6.1.6 not remove or alter any copyright or other proprietary notice on any of the Materials;
6.1.7 not permit any third party to use the Materials in any way whatsoever nor use the Materials on behalf of or for the benefit of any third party in any way whatsoever.
6.1.8 not use the Materials nor allow anyone else to use the Materials to create a substitute for any service provided by or separately marketed by JWN;
6.1.9 ensure that only Licensed Users are permitted access to the Materials;
6.1.10 issue passwords or other access information only to Licensed Subscribers or Licensed Users and use reasonable efforts to ensure that Licensed Subscribers or Licensed Users do not divulge their passwords or other access information to any third party.
7. FEES AND REFUNDS
7.1 The Subscriber shall pay the Annual Subscription Fee on or before the activation date of the subscription or as otherwise provided for in the invoice issued by JWN.
7.2 The Subscriber shall pay the Annual Subscription Fee by payment of invoice no later than the payment date identified on the invoice. The Subscriber may pay such invoices by means of credit card or by cheque payable to "JWN Media, a geoLOGIC company".
7.2.1 In the case where the Subscriber has chosen to pay for an Annual Subscription Fee through monthly payments, the Subscriber expressly agrees and acknowledges they are financially obligated for the full amount of the Annual Subscription Fee until the end of the term.
7.2.2 Monthly payments will be processed every 21 business days commencing on the first day of the Annual Subscription Fee term and continuing for a 12 month period, at which time notification will be provided for the next upcoming Annual Subscription Fee term.
7.3 The Subscriber may increase the number of Licensed Users set out in the Agreement either:
7.3.1 for the following Annual Period by paying the then current Additional User Fee for each Additional User on the Commencement Date of the Annual Period in question; or
7.3.2 by paying immediately a prorated amount of the Additional User Fee for the time remaining until the commencement of the next Annual Period.
7.4 JWN reserves the right to suspend access to the website and subsequent data until all sums due under this Agreement have been paid in full.
7.5 The Charges payable under this Agreement are expressed as exclusive of GST which shall, if applicable, be payable by the Subscriber in addition to the Charges on receipt of a valid invoice.
7.6 No refunds or credits will be provided for Annual Subscription Fees where users on the account are less than 10 Subscribers or Licensed Users.
7.7 Refunds or credits which are provided will be completed with a 35 per cent administration fee applied to the refund or credit provided less any used portion of the subscription.
8. LIMITATION ON LIABILITY
8.1 JWN shall have no liability for any of the following losses or damage (whether such losses or damage were foreseen, foreseeable, known or otherwise):
8.1.1 loss of revenue;
8.1.2 loss of actual or anticipated profits (including loss of profits on contracts);
8.1.3 loss of anticipated savings;
8.1.4 loss of business;
8.1.5 loss of opportunity;
8.1.6 loss of goodwill;
8.1.7 loss of reputation; or
8.1.8 any indirect or consequential loss or damage, howsoever caused.
8.2 The Subscriber acknowledges that the Materials have not been prepared to meet the Subscriber’s individual requirements and that it is therefore the responsibility of the Subscriber to ensure that the facilities and functions described in geoLOGIC’s published specifications relating to the Materials meet Subscriber’s requirements.
9.1 Each party undertakes to the other to keep confidential all information (written or oral) concerning the business and affairs of the other which it has obtained or received as a result of discussions leading up to the entering into of this Agreement or which it has obtained during the course of this Agreement, including the user list and their log-in credentials, except any information which:
9.1.1 is already in its possession other than as a result of a breach of this clause 9;
9.1.2 is in the public domain other than as a result of a breach of this clause 9; or
9.1.3 must be disclosed under applicable law.
9.2 Each of the parties undertakes to the other to take all such steps as shall from time to time be necessary to ensure compliance with the provisions of this clause 9 by its employees, agents and subcontractors.
9.3 The provisions of this clause shall survive termination.
10. INTELLECTUAL PROPERTY
10.1 The Subscriber acknowledges that title to all Intellectual Property in any Materials (including any Modifications) associated documentation or other materials delivered to the Subscriber or Licensed User pursuant to the terms of this Agreement shall remain that of JWN or its respective licensors.
10.2 Title to the Intellectual Property in any Materials delivered by the Subscriber or Licensed User to JWN pursuant to the terms of this Agreement shall remain that of the Subscriber.
10.3 Each party shall indemnify and keep indemnified the other against any costs, losses, damages or expenses that are suffered or incurred by the other party in respect of any claim or action that the use of Materials delivered by the indemnifying party to the other in accordance with this Agreement infringes the Intellectual Property rights of any third party provided that the indemnified party gives:
10.3.1 prompt notice of such claim; and
10.3.2 all relevant documentation relating to the claim.
10.4 The Subscriber shall ensure that it complies with all reasonable instructions of JWN in connection with the inclusion, use and representation of any copyright notices or trade mark notices or other proprietary notices connected with any website and associated documentation delivered to the Subscriber pursuant to this Agreement and, in particular, will not obscure, tamper with or remove any such notices without JWN's prior written consent.
11. DURATION AND TERMINATION
11.1 Subject to clause 11.2, this agreement shall commence on the Commencement Date and shall continue until terminated in accordance with this clause 11.
11.2 Without prejudice to the foregoing, JWN may terminate this agreement immediately by notice to the Subscriber if any of the following events occurs:
11.2.1 the Subscriber has committed a material breach of this Agreement; or
11.2.2 the Subscriber repeatedly breaches any of the terms of this Agreement in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of this Agreement.
11.3 Immediately on termination of this Agreement, the Subscriber shall pay to JWN any and all sums outstanding that are due to JWN and payable by the Subscriber.
11.4 On termination of this Agreement for any reason or expiry and subject as otherwise provided in this Agreement to any rights or obligations which have accrued before termination or expiry, neither party shall have any further obligation to the other under this Agreement.
11.5 At the end of the Licence Period, the terms and provisions of this Agreement may be extended by JWN and the Subscriber by both agreeing to enter into a Subscription Agreement, in which case the terms of this Agreement shall continue in effect.
11.6 The Subscriber may terminate the agreement during the Subscription Agreement process at which time the Subscriber may decline entering into a new term with JWN.
12. CONSEQUENCES OF TERMINATION
12.1 Upon the termination of this Agreement the Subscriber shall (where the Subscriber has received copies of the Materials):
12.1.1 Return the Materials and all copies thereof to JWN or, at the option of JWN, shall destroy the same and certify to JWN that they have been so destroyed.
13. FORCE OF NATURE
Neither party shall be liable to the other or be deemed to be in breach of this Agreement by reason of any delay in performing, or failure to perform, any of its obligations under this Agreement if the delay or failure was beyond that party's reasonable control (including, without limitation, any failure of any third party to provide services in relation to the Internet, strike, lockout or other industrial action, act of God, war or threat of war, terrorist action, pandemic disease, accidental or malicious damage or prohibition or restriction by governments or other legal authority).
14.1 This Agreement contains the entire agreement between the parties with respect to the Services, supersedes all previous agreements and understandings between the parties.
14.2 If any provision of these terms and conditions is held by any court or other competent authority to be void or unenforceable in whole or in part, the same shall be deemed omitted from this Agreement and the validity and/or unenforceable of the remaining provisions of this Agreement shall not in any way be affected or impaired thereby.
14.3 This Agreement is personal to the Subscriber and shall not be transferred to or assigned by the Subscriber without the prior written consent of JWN JWN may at any time assign its rights under this Agreement or delegate, sub-let or sub-contract its rights and obligations under this Agreement to another company which is the holding company or subsidiary of JWN or any subsidiary of such holding company.
14.4 Any notice required or permitted to be given hereunder shall be in writing addressed to a party at its registered office or principal place of business or such other address as may at the relevant time have been notified for that purpose. Such notice may be delivered by hand or sent by first class prepaid post when it shall be deemed to have been received 48 hours after.
14.5 This Agreement shall be governed by and construed in all respects in accordance with the law of Canada and the Province of Alberta and the parties hereby submit to the exclusive jurisdiction of the Alberta Courts provided that JWN shall not be prevented from seeking any court order or judgment in any other court of competent jurisdiction.