MASTER LOCK/FORMS/FieldID Master Subscription Agreement (Version 1)

MASTER SUBSCRIPTION AGREEMENT

THIS MASTER SUBSCRIPTION AGREEMENT (“Agreement”) GOVERNS YOUR ACCESS TO AND USE OF OUR SERVICES.  IT IS EFFECTIVE AS OF THE DATE YOU ACCEPT THIS AGREEMENT.  BY CLICKING ON THE “I accept” BUTTON BELOW OR USING THE SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT.  IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A LEGAL ENTITY, THE PERSON ACCEPTING THIS AGREEMENT REPRESENTS AND WARRANTS THAT HE/SHE HAS AUTHORITY TO BIND THAT ENTITY.  IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, SELECT THE “I do not accept” BUTTON BELOW AND DO NOT USE THE SERVICES. 

THIS AGREEMENT ALSO APPLIES TO ANY TRIAL VERSION OF THE SERVICES.

1.              DEFINITIONS.  Capitalized terms have the meaning given to them in this Agreement, including in this Section.

1.1.          "Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity.  "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

1.2.          Business Day“ means Monday to Friday other than statutory holidays in the province of Ontario, Canada.

1.3.          "Order Form" means one or more documents for identifying the Services to provided to You by Us under this Agreement.  By entering into an Order Form, an Affiliate agrees to be bound by the terms of this Agreement as if it were an original party hereto.  Order Forms shall be deemed incorporated herein by reference.

1.4.          "Purchased Services" means Services that You or Your Affiliates purchase under an Order Form, as distinguished from those provided pursuant to a free trial.

1.5.           "Services" means the products and services that are ordered by You under a free trial or an Order Form and made available by Us via the Internet at web pages designated by Us.

1.6.           Subscription Fee” means the amounts payable to Usin consideration for access to the Services as specified in the applicable Order Form(s).

1.7.           "User(s)" means individuals who are authorized by You to use the Services, for whom subscriptions to a Service have been ordered and the applicable Subscription Fee paid, and who have been supplied user identifications and passwords by You (or by Us at Your request).  Users may include but are not limited to Your employees, consultants, contractors and agents, and third parties with which You transact business, all of whom are bound to adhere to the terms of this Agreement.

1.8.          We,” “Us” or “Our” means Field ID, a division of Master Lock Canada Inc.

1.9.          You” or “Your” means the legal entity for which the person signing the Order Form and/or clicking the “I accept” button below is accepting this Agreement. 

2.              OUR SERVICES

2.1.          Upon payment of the Subscription Fee and solely during the Term, We will make the Services available to You pursuant to the terms of any Order Form and this Agreement; and use commercially reasonable efforts to provide our Standard Support for Purchased Services available to You.   

2.2.          Standard Support means only technical support for the Purchased Services as set forth at http://help.fieldid.com.  We warrant that the Services will be performed in a professional and workmanlike manner.  As Our sole liability and Your sole remedy, to the exclusion of all other remedies in contract, tort, or otherwise, for any failure of the Services to operate in conformity with the warranty, We will repair or replace any defective or malfunctioning Services at no charge or if We, in Our sole discretion, deem repair or replacement of the Services to be commercially unreasonable, We may terminate this Agreement and refund to You the applicable subscription fees paid by You for the malfunctioning Services during any period where the Services were unavailable to You due to such malfunction(s). If the Services fail to perform in accordance with the warranty, You shall promptly advise Us of the alleged defect and shall assist Us in identifying the defect.  Standard Support does not include: customization to the Services; training; hardware and related supplies and support thereof; and any support services provided at Your locations. Standard Support is neither provided nor available for trial access to the Services. We may revise our Standard Support policy from time to time, with changes effective upon posting of the revised policy at www.help.fieldid.com.

2.3.          Unless otherwise specified in the applicable Order Form, (i) Services are purchased as User subscriptions and may be accessed by no more than the specified number of Users, (ii) additional User subscriptions may be added during the applicable subscription term at the same pricing as that for the pre-existing subscriptions thereunder, prorated for the remainder of the subscription term in effect at the time the additional User subscriptions are added, and (iii) the added User subscriptions shall terminate on the same date as the pre-existing subscriptions.  User subscriptions are for designated Users only and cannot be shared or used by more than one User but may be reassigned to new Users replacing former Users who no longer require ongoing use of the Services.

2.4.          TRIAL ACCESS.  YOUR USE OF THE TRIAL VERSION OF THE SERVICES OR USE OF THE SERVICES DURING A TRIAL PERIOD IS AT YOUR SOLE RISK.  THE SERVICES ARE PROVIDED TO YOU IN THE TRIAL VERSION FOR TRIAL ONLY AND WITHOUT EITHER EXPRESS OR IMPLIED WARRANTIES OF ANY KIND (INCLUDING THOSE OTHERWISE SET FORTH IN THIS AGREEMENT FOR PURCHASED SERVICES), SOLELY ON AN “AS IS” BASIS.  WE MAKE NO EXPRESS OR IMPLIED WARRANTIES TO YOU WITH REGARD TO THE TRIAL VERSION OF THE SERVICES OR USE OF THE SERVICES FOR ANY TRIAL PERIOD, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE OR NON-INFRINGEMENT.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE WILL NOT HAVE ANY LIABILITY OR RESPONSIBILITY TO YOU FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, SPECIAL, PUNITIVE, INCIDENTAL, INDIRECT OR CONSEQUENTIAL DAMAGES, ARISING OUT OF OR RESULTING FROM THE TRIAL VERSION OF THE SERVICES OR ANY TRIAL PERIOD FOR THE SERVICES, ANY COMPONENT, SERVICES OR MATERIALS MADE AVAILABLE TO YOU IN CONNECTION WITH THE TRIAL VERSION OF THE SERVICES OR ANY TRIAL PERIOD OF THE SERVICES UNDER THIS AGREEMENT OR THE USE OR MODIFICATION OF ANY OF THEM, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY DAMAGES FOR LOST DATA, LOSS OF BUSINESS, COST OF REPLACEMENT SERVICES OR ANTICIPATORY PROFITS.  IN ANY CASE, OUR ENTIRE LIABILITY UNDER ANY PROVISION OF THIS AGREEMENT FOR THE TRIAL VERSION OF THE SERVICES OR USE OF THE SERVICES FOR ANY TRIAL PERIOD WILL BE LIMITED TO THE LESSER OF THE AMOUNT ACTUALLY PAID BY YOU TO US FOR THE TRIAL VERSION OF THE SERVICES OR TEN UNITED STATES DOLLARS ($10.00).  SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR HAVE LEGISLATION THAT RESTRICTS THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.  YOU ACKNOWLEDGES THAT THE TRIAL VERSION OF THE SERVICES MAY CONTAIN LIMITED FUNCTIONALITY, WILL CEASE ALL OPERATION AFTER A PERIOD OF 30 DAYS (OR SUCH OTHER PERIOD AS IS AGREED IN WRITING BY YOU AND US) AND THAT CESSATION OF OPERATION MAY RESULT IN THE LOSS OF DATA.

3.              USE OF SERVICES

3.1.          Usage Limitations.  The Services shall not be used outside of Your normal course of business.  You may only permit Users to use the Services and You shall be liable for all use of the Services by Users and any breach of this Agreement by any User.  Except as expressly provided herein, You shall not permit third parties to have access to or use of the Services.  You may not download, copy or reproduce any portion of the Services, except as permitted by this Agreement.  You shall not, and shall not permit anyone else to reverse engineer, decompile, or disassemble the Services.  You shall not modify, adapt, alter, edit, correct, translate, publish, sell, transfer, assign, convey, rent, lease, loan, pledge, sublicense, distribute, export, enhance, or create derivative works based upon the Services, in whole or part, or otherwise grant or transfer rights to the Services or the rights granted herein in any form or by any media (electronic, mechanical, photocopy, recording, or otherwise).  You shall not use the Services to provide data processing services, commercial timesharing, rental, service bureau or any similar sharing arrangement for a third party.  You shall not interfere, or attempt to interfere, with the Services in any way.  You shall not engage in any fraudulent, illegal or unauthorized use of the Services.  You shall not use, or permit any third party to use, the Services for the purpose of developing, selling, distributing, or sublicensing any software or service that competes with the Services.

3.2.          Your Responsibilities.  You are solely responsible for (i) all storage, backup and retrieval of Your data and You are also responsible to create back-up records of all information entered by You into the Services; (ii) the accuracy of all data and information entered into the Services; (iii)  providing all information regarding function, format and data interpretation to Us as requested in order for Us to successfully complete the Services in accordance with the terms and conditions of this Agreement; (iv) providing a proper operating environment for the Services including, at a minimum, the then-current system requirements as published by Us; (v) and must provide, all telephones, telecommunications connections, computers, hardware and software equipment and services necessary to access the Internet and the Services; and (vi) promptly installing all fixes, releases, updates, modifications and additions to the Services that are made available to You by Us and destroying all copies of previous versions, if any.  You will notify us of the geographic location of each User upon entry of an order and will notify us in the event that any User is relocated to a different geographic location at any time during the term of this Agreement.  Notice shall be provided to Us according to Section 12.4.  You will use the Services in compliance with all applicable laws including, without limitation, United States copyright and export laws.  You will within 30 days of request from Us or Our representative, if You are a business or organization, fully document and certify Your compliance with this Agreement at the time of Our request.

3.3.          Scope.  You acknowledge that the Services are simply a tool to assist You, that We do not provide legal or compliance services, and that You are solely responsible for Your compliance with all laws, rules and regulations applicable to You.

3.4.          Export Control.  You will not export or re-export directly or indirectly the Services to any countries except in compliance with the United States Export Administration Regulations (“EAR”) and any other United States export laws.  In particular, but without limitation, the Services may not be exported or re-exported (including, without limitation, any download or delivery): (i) into (or to a national or resident of) any U.S. embargoed country; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders.  By using the Services, You represent and warrant that You are not located in, under control of, or a national or resident of any country to which export is prohibited or on any list maintained by the U.S. government prohibiting delivery of the Services to You.

3.5.          Third-Party Products.  We or third parties may from time to time make available to You third-party products or services either through the Services, by way of hyperlinks, or externally.  Any acquisition by You of such third-party products or services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider.  We do not warrant or support third-party products or services, whether or not they are designated by Us as “certified”, part of an authorized configuration or otherwise.

4.              FEES AND PAYMENTS

4.1.          You shall pay the Subscription Fee in advance for the Services in the manner (e.g., credit card, ACH debit, etc.) specified in the Order Form.  Subscription Fees are based on Services purchased and not actual usage.  Payment obligations are non-cancelable and fees paid are non-refundable.  The number of User subscriptions purchased cannot be decreased during the relevant subscription Term stated on the applicable Order Form.  All Subscription Fees are stated in United States Dollars.

4.2.          In addition to the Subscription Fee, You shall pay all taxes, however designated, including sales and use taxes, goods and services value added, duties and tariffs and other governmental charges payable in relation to use of the Services.  If a certificate of exemption or similar document is to be used in order to exempt You from that liability, You must furnish a copy of the certificate to Us prior to commencement of the Term.  In the event that You are prohibited by law from making payments to Us free of deductions or withholdings, You will pay the additional amounts to Us as may be necessary to ensure that the actual amount received by Us after deduction or withholding and after payment of any additional taxes or charges due as a consequence of the payment of the additional amounts, equals the amount that would have been received by Us if the deductions or withholdings were not required.

4.3.          You will be responsible for, and We are entitled to recover from You, all costs associated with collecting any fees or other amounts due and owing to Us from You, including but not limited to any legal costs, attorneys’ fees, court costs and collection agency fees.

4.4.          If You fail to pay any amounts owing to Us by the applicable due date, We will have the right to: assess late charges each month until such amount is paid in an amount equal to the lesser of one and one-half percent (1½%) of the overdue amounts or the maximum amount permissible under applicable law; and suspend any or all of the Services or terminate this Agreement, without relieving You of Your obligations with respect to any amounts due to Us.

5.              OWNERSHIP AND LICENSES

5.1.          The Services.  We own all right, title and interest in and to the Services and any software or hardware used to provide the Services, in whole or in part, and including, without limitation, all patent, copyright, trade-marks, trade secret and all other intellectual property, proprietary and industrial property rights in the Services and the structure, sequence and organization of same, and the media on which such material is contained. You will not alter, remove, cover or otherwise obscure any copyright notices, trade‑mark notices and any other intellectual property rights attaching to or displayed on the Services, and any other material made available under this Agreement.  Your sole rights are only those limited rights to access and use the Services that are granted by Us pursuant to this Agreement. You shall promptly notify Us of any infringement or improper or unauthorized use of which You have knowledge.

5.2.          License to Feedback.  You hereby grant Us and Our assigns a non-exclusive, royalty-free, perpetual, irrevocable license, with the right to sublicense, to use, copy, transmit, distribute, create derivative works of, display, perform and incorporate into the Services any suggestion, enhancement, customization request, recommendation, fix, correction or other feedback provided to Us by You or Users related to the Services (“Feedback”). Feedback shall not be deemed Confidential Information of Yours.

5.3.          License to Data.   You hereby grant Us and our Affiliates a worldwide, limited-term license to host, copy, transmit, and display Your data as necessary for Us to provide the Services according to the terms of this Agreement.

5.4.          U.S. Government Restricted Rights.  The Services and the software used to provide the Services are a “commercial” item provided with restricted rights.  Use, duplication, or disclosure by the United States Government is subject to restrictions as set forth in this Agreement and at DFARS 227.7202-1(a) and 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation), DFARs 252.227-7015 (Technical Data –Commercial Items), FAR 12.211 (Technical Data), FAR 12.212 (Software), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable and as may be amended.  Manufacturer is Field ID, 111 Queen Street East, Suite 240, Toronto, Ontario Canada M5C 1S6.  If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable agreement.

6.              PRIVACY AND USE OF INFORMATION

6.1.          You shall at all times comply with all relevant privacy legislation, regulations and any privacy related professional obligations applicable in the use of the Services and, without limiting the generality of the foregoing, the collection, use and disclosure of data forming part of, incorporated, submitted or used in connection with the Services. You acknowledge and agree that all information and data provided, supplied or entered into the Services may be relied upon by third parties.  You represent and warrant that all information and data provided, supplied or entered into by You into the Services shall be true, correct and complete.

6.2.          We may gather, collect, utilize, market and sell information relating to Our clients, usage patterns, usage data, utilized or contributed data provided, entered or supplied by the You in connection with this Agreement (“Usage Data”) provided that any such use shall only be made in an aggregate and anonymous format only.  On termination of this Agreement, We shall be entitled to retain and use the Usage Data.

6.3.          Certain features of the Services use location-based services.  You authorize Us to collect, use, and share precise location data, including the real-time geographic location of any device using the Services.  This location data is collected in accordance with Your use of the Services and may require a User’s personal information for the feature to work.

6.4.          The use of the Services and collection of Your and its Users’ personally identifiable information is subject to Our then-current Privacy Policy, as posted at www.fieldid.com, as the same may be updated from time-to-time.

7.              CONFIDENTIALITY

7.1.          Defined.  “Confidential Information” means any non-public information of Ours, including, but not limited to, trade secrets, processes, methods, ideas, algorithms, plans, software source code, technical specifications, engineering data, computer software programs, manufacturing know-how, or other information relating to, incorporated in or forming part of the Services, the specifications and Documentation and any other information which would be reasonably considered to be confidential, including the terms of this Agreement. The obligations of confidentiality imposed by this Section shall not apply, or shall cease to apply, to any Confidential Information: which at the time of disclosure is within the public domain, other than through a breach of this Agreement; which after disclosure becomes readily and lawfully available to the industry or the public, other than through a breach of this Agreement; which You can establish, by documented and competent evidence, was in its possession prior to the date of disclosure of such Confidential Information by Us.

7.2.          Treatment. You shall treat the Confidential Information in strict confidence and shall not disclose, transfer, copy, reproduce, electronically transmit, store or maintain, remanufacture or in any way duplicate all, or any part of, the Confidential Information except in accordance with the terms and conditions of this Agreement.  You shall be directly liable for the acts or omissions of  Users, employees, agents and contractors with respect to such confidentiality obligations.  You agree to protect the Confidential Information with the same standard of care and procedures which You use to protect Your own trade secrets, proprietary information and other confidential information and, in any case, not less than a reasonable standard of care.

7.3.          Compelled Disclosure. In the event that You are required by law or direction of a regulatory authority to disclose Confidential Information, You shall provide Us with prompt written notice of the requirement sufficiently in advance to permit Us to seek a protective order or other appropriate remedy to prevent such disclosure.  In the event that such protective order or other remedy is not obtained, You shall only disclose such portion of the Confidential Information as may be required to be disclosed.

8.              INDEMNIFICATION

8.1.          We shall indemnify You against all third-party claims made against You alleging that any authorized use of the unmodified Services or Documentation constitutes an infringement of copyright, patent, trade-mark or trade secret rights.  We shall have exclusive right to defend any such claim made against You and have the exclusive right to settle the claim, provided that We shall not enter into any settlement that obligates You to pay money or admit guilt without Your prior approval.  You shall cooperate fully in the conduct of the defense, at Our expense.  You shall notify Us promptly upon any claim being made against You that Your use of the Services is alleged to be an infringement of the intellectual property rights of another.  In the event that we receive any such claim or any other information about an alleged infringement based on the Services, We may, at Our option, modify the Services so it is non-infringing, obtain a license for Your continued use of the Service or terminate an Order Form or this Agreement upon notice to You, provided that if We terminate an Order Form or this Agreement, we will refund to You any pre-paid Subscription Fees covering the remainder of the then current Term.  This Section states Our entire liability  and Your exclusive remedy for any type of claim set forth in this Section.

8.2.          You shall, at Your expense, defend and indemnify Us in any suit, claim or proceeding brought against Us arising out of or resulting from: (a) the use of the Services by You for purposes for which it was not authorized hereunder; (b) all data or information entered into the Services by You and Users; (c) Your use of the product and results of the Services; and (d) the installation and integration and the use of the Services in combination with software or other equipment or products not supplied by Us.  You shall have exclusive right to defend any such claim made against Us and have the exclusive right to settle the claim, provided that You shall not enter into any settlement that obligates Us to pay money or admit guilt without Our prior approval.  We shall cooperate fully in the conduct of the defense, at Your expense.  We shall notify You promptly upon any such claim being made against Us.

9.              DISCLAIMER of Warranty

EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, THE SERVICES ARE PROVIDED ON AN AS IS BASIS AND WE MAKE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESSED OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW OR OTHERWISE, REGARDING THE SERVICES OR ANY OTHER PRODUCT OR SERVICE PROVIDED HEREUNDER OR IN CONNECTION HEREWITH, INCLUDING WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTY OF MERCHANTABILITY, FUNCTIONALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT THEIR OPERATION WILL BE UNINTERRUPTED,  ERROR FREE OR SECURE, OR THAT ALL CONTENT OR DATA DELIVERED OR PROVIDED UNDER THIS AGREEMENT OR THROUGH USE OF THE SERVICES WILL BE APPROPRIATE OR APPLICABLE TO YOUR USE.  WITHOUT LIMITING THE FOREGOING,  YOU ACKNOWLEDGE THAT WE SHALL HAVE NO LIABILITY WHATSOEVER FOR ANY THIRD-PARTY PRODUCTS PROVIDED TO YOU UNDER THIS AGREEMENT AND THAT YOUR SOLE AND EXCLUSIVE REMEDY RELATED TO SUCH PRODUCTS SHALL BE WITH AND AGAINST THE THIRD-PARTY MANUFACTURERS OF SUCH PRODUCTS.

10.            LIMITATION OF LIABILITY

TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE OR OUR SUPPLIERS BE LIABLE TO YOU OR ANY THIRD PARTY FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR TECHNOLOGY, LOSS OF PROFITS, LOST DATA, BUSINESS INTERRUPTION, OR FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, PUNITIVE OR INDIRECT DAMAGES REGARDLESS OF THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF FIELD ID HAS BEEN ADVISED OF THE POSSIBILITY OF THE DAMAGES.  OUR TOTAL LIABILITY UNDER THIS AGREEMENT OR FOR BREACH OF THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, WILL NOT EXCEED THE SUBSCRIPTION FEES PAID BY YOU TO US UNDER THIS AGREEMENT FOR THE SIX (6) MONTHS PRECEDING THE MONTH IN WHICH THE CAUSE OF ACTION ACCRUES.

THE LIMITATIONS IN THIS SECTION 10 WILL SURVIVE THE EXPIRATION OR TERMINATION OF THIS AGREEMENT AND WILL APPLY EVEN IN THE EVENT OF THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.  SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR HAVE LEGISLATION THAT RESTRICTS THE LIMITATION OR EXCLUSION OF LIABILITY, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU IN THOSE STATES.  YOU AGREE THAT OUR LICENSORS WILL HAVE NO LIABILITY WHATSOEVER TO YOU.

11.          TERM, TERMINATION AND SUSPENSION

11.1.        Term.  This Agreement becomes effective as of the date You accept it, provided that We shall not be obligated to provide the Services until you have executed an Order Form and paid the applicable Subscription Fees, and shall continue until al subscriptions have expired (“Term”).  The term of each subscription shall be set forth in an Order Form and shall automatically renew on a month-to-month basis, unless terminated by either Us or You at least thirty (30) days prior to the end of the then current term. 

11.2.        Termination or Suspension by Us. If any of the following conditions arise during the Term, We shall have the right, at Our option, to terminate this Agreement by giving a written notice of such termination to You, whereupon this Agreement shall immediately cease and terminate:  if You breach  Your confidentiality obligations under this Agreement; or You fail to pay any amount due under this Agreement.  We reserve the right to deny, suspend or revoke access to the Services, in whole or in part, if We believe You or Your Users are in breach of this Agreement or are otherwise using or accessing the Services inconsistent with the terms of this Agreement.

11.3.        Termination for Breach or Insolvency.  Each party may, upon written notice to the other party, terminate this Agreement if (i) such party is in material breach of this Agreement and fails to remedy such material breach within thirty (30) calendar days of its receipt of such written notice; or (ii) such party becomes subject to a petition in bankruptcy, has a receiver appointed for it, makes an assignment for the benefit of creditors, or is involved in any other proceeding relating to solvency, liquidation, or receivership.

11.4.        Effect of Termination.  Effective upon termination hereof, You shall:  immediately make all payments and perform any other obligations of You arising hereunder within thirty (30) days of termination; immediately cease to access, use and/or permit to use the Services in any manner whatsoever; and as directed at Our sole option, immediately destroy or return all copies of the Services including all electronically stored copies thereof and back up copies and related materials and any Our Confidential Information in Your possession, with an affidavit of the You or  Your senior officer attesting to completion of this task. Termination hereunder shall be without prejudice to any other right or remedy to which either party may be entitled hereunder in law.  The obligations set out in Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, and 12 hereof shall survive the termination or expiration of this Agreement.

12.            MISCELLANEOUS.

12.1.        ASSIGNMENT.   The rights granted to You are personal and You may not transfer, assign, or otherwise dispose of this Agreement, or any of its rights or obligations under this Agreement without Our prior written consent.  The parties agree and anticipate that We may fulfill Our obligations under this Agreement (either partially or completely) through the efforts of, or by contract with, third parties.  Any attempted assignment in violation of this Section will be null and void. 

12.2.        RELATIONSHIP.  This Agreement is entered between separate entities and neither is the agent of the other for any purpose whatsoever. The parties are independent contractors and neither has any power nor will it represent itself as having any power to in any way bind or obligate the other or to assume or create any expressed or implied obligation or responsibility on behalf of the other or in other's name, and neither party shall have authority to represent itself as agent of the other.  This Agreement shall not be construed as constituting the parties as partners or to create any other form of legal association which would impose liability upon one party for the act or failure to act of the other.

12.3.        INTERPRETATION. This Agreement and each Order Form constitute the entire agreement between the parties with respect to the subject matter set forth and supersedes any and all prior agreements between the parties either oral or written. Unless specifically otherwise provided for herein, this Agreement may not be amended, waived or extended, in whole or in part, except by a writing signed by both parties hereto.  Should any part of this Agreement be found to be invalid by a court of competent jurisdiction, the remainder of this Agreement shall continue in full force and effect. No waiver by either party of any breach by the other party of any provision of this Agreement shall, unless in writing, be deemed or construed to be a waiver of any succeeding or other breach of such provision or as a waiver of the provision itself.

12.4.        NOTICES.  Any notice regarding terms and conditions of this Agreement, to be given to any of all of the parties hereunder shall be in writing and may be given by delivering the same to, in Your case, the email address on file with Us  for You and in  Our case to Field ID, Attn:  General Counsel, 111 Queen Street East, Suite 240, Toronto, Ontario Canada M5C 1S6. Any such notice shall be delivered, if to Us, by certified mail (return receipt requested), by messenger or by hand or if to You, by e-mail provided evidence of transmission if produced at point of origination.  Any such notice shall be deemed to have been given on the date on which it was delivered if delivered by hand, messenger or e-mail and on the fifth (5th) business day following posting if given by certified mail.  In the case of postal disruption, all notices pursuant to this section are to be delivered by messenger, hand or e-mail but not certified mail. Any party hereto may change its address for service from time to time by notice given to the other parties hereto in accordance with the foregoing.

12.5.        ENGLISH LANGUAGE.  We and You have required that this Agreement and all documents related to this Agreement be drawn up in English.  For Licensees resident in Quebec, France and other francophone jurisdictions: Field ID et Licensee ont demandé expressément qua la présente entente et tous les document et avis connexes soient rédigés en anglais.

12.6.        APPLICABLE LAW. This Agreement shall be governed by and construed in accordance to the laws applicable in the Province of Ontario, Canada, without giving effect to the principles of conflicts of law and excluding that body of law applicable to choice of law.  Except where We are seeking equitable relief, any claim or court proceeding brought by a party in relation with this Agreement may be presented exclusively in the City of Toronto of the Province of Ontario, Canada.  You agree that, except where We are seeking equitable relief, the courts of the City of Toronto of the Province of Ontario, Canada constitute the appropriate and exclusive forum for any claim or court proceeding in relation with this Agreement and You submit to the exclusive jurisdiction of such courts.  Each party hereby knowingly waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.  Pursuant to Article 6 of the United Nations Convention on Contracts for the International Sale of Goods (“UN Convention”), You and WE agree that the UN Convention will not apply to this Agreement.

12.7.        FORCE MAJEURE.  Except for the obligation to make payments, neither party will be liable to the other nor deemed in breach of this Agreement to the extent that performance is rendered impossible or delayed due to events beyond the control of or not due to the negligence of the non-performing party, including but not limited to acts of war, terrorism, strike, fire, flood, storm, vandalism, cable cut, failure of telecommunications equipment, power failure, riot, explosions, governmental acts or orders or restrictions, acts of God, failure of suppliers, or any other reason where failure to perform is beyond the control of the non-performing party.

 

 

MASTER LOCK/FORMS/FieldID Master Subscription Agreement (Version 1)