Last edited on September 16, 2024
IMPORTANT -- The access and use of our fundraising and investor relations management platform (the "Platform") and the provision of related services by Vessel Funds Inc., its affiliates or subcontractors (collectively, "Vessel") is subject to the terms and conditions set out below (the "Agreement"). Therefore, please read before accessing or using the Platform or our Services.
This Agreement, made and entered into as of the time and date of click-through or tapping action (the "Effective Date"), is a legal agreement between you ("Client" or "you" and together with Vessel the "Parties", and each a "Party") and Vessel and governs the access and use of the Platform and the provision of related services by Vessel.
By clicking or tapping the "Accept" button or similar affirmation as applicable when accessing or using the Platform or the related Services, or by signing a copy of this Agreement, a Quote or an Order Form, Client agrees to be bound by the terms of this Agreement, the Vessel Privacy Policy, and the Data Processing Agreement (see Schedule -- Data Processing Agreement) and that this Agreement governs Client's use of the Platform and the provision of related Services by Vessel. If you do not agree to the terms of this Agreement, do not access or use the Platform or the related Services, sign a copy of this Agreement, a Quote or an Order Form.
If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the legal authority to bind the entity to this Agreement, in which case "you" and "Client" will mean the entity you represent. If you don't have such authority, or if you don't accept all the terms and conditions of this Agreement, then Vessel does not agree to your access and use of the Platform and the provision of the Services, and you may not use the Platform and benefit from the related Services.
Vessel reserves the right, at any time and without prior notice, to modify or replace any of this Agreement. Any changes to this Agreement can be found at https://vessel.co/legal/terms. We will use commercially reasonable efforts to notify you by sending a notice to the primary email address specified in your account, by posting a prominent notice when you log in to your account for the first time following those changes, or by posting a prominent notice on the Platform. Should you disagree with changes brought by Vessel to this Agreement, your only remedy will be to request the termination of your account within a period of 30 days of the entry into force of such modification and of this Agreement in writing by notifying Vessel and Vessel will then refund any unused fees.
In addition to the other terms defined in the Agreement, for the purposes of this Agreement:
Affiliate means, with respect to any entity, any other entity directly or indirectly controlling or controlled by, or under direct or indirect common control with, such entity. For the purposes of this definition, an entity shall control another entity if the first entity: (i) owns, beneficially or of record, more than 50% of the voting securities of the other entity; or (ii) has the ability to elect a majority of the directors of the other entity.
Confidential Information means (i) any and all non-public, confidential or proprietary information of a Party, including any information relating to the existence or content of the Agreement, the Services, the Documentation, Client Data and a Party's business, products, services, activities, operations, business affairs, clients and prospects, Intellectual Property (including Vessel Intellectual Property), technology, know-how, design rights and trade secrets, whether such information is provided orally, in writing, in computer-readable form or otherwise and whether or not it is specifically identified as confidential; and (ii) any copies, extracts or reproduction, in whole or in part, of any of the foregoing.
Client Data means any and all electronic data or other information that is (i) uploaded or inputted by Client to the Platform; (ii) stored by Client via the Platform; (iii) uploaded or inputted by End User of Client via the Platform; or (iv) provided by Client to Vessel, regardless of the format or medium, to be used in connection with the Services.
Documentation means all documents, user manuals or other information, available in writing, online or otherwise, relating to the Services provided by Vessel.
End User means any individual with access to the Platform managed by the User to access and utilize the Vessel Platform for the purpose of engaging with or benefiting from the services, features, or content provided by Vessel or the User through the Platform.
Force Majeure means any circumstances beyond a Party's reasonable control, including natural disasters, acts of government, floods, fires, earthquakes, pandemics, epidemics, government-mandated quarantines, publicly declared states of emergency, civil unrest, terrorism, strikes or other labour problems (other than those involving such Party's employees), Internet service provider failures or delays, or denial of service attacks.
Intellectual Property means any and all ideas, concepts, inventions, methods, processes, know-how, trade secret, works, software, computer programs and other computer software (including all source and object codes, algorithms, architectures, structures, user interfaces including display screens, layout and development tools), data, databases, data compilations, designs, plans, drawings, brochures, website content, sales and advertising literature and other marketing materials, and any improvements thereon or applications or derivative works thereof, and all other forms of intellectual property, all whether or not registered or capable of such registration.
Intellectual Property Rights means any or all intellectual property rights, whether registered or not, including those rights arising out of or related to patents, copyrights, Trademarks, and other proprietary rights, and all registrations or applications in relation to the foregoing, however denominated, throughout the world and in all media now known, and all rights to sue at law or in equity for any past infringement or other impairment of any and all of the foregoing, including the right to receive all proceeds and damages therefrom, where applicable at law.
Malicious Code means any viruses, worms, time bombs, Trojan horses, "back door," "drop dead device, "spyware" or "adware" (as such terms are commonly understood in the software industry) and other harmful or malicious code, files, scripts, agents or programs designed or intended to have or capable of performing or facilitating, any of the following functions: (i) disrupting, disabling, harming or otherwise impeding in any manner the operation of, or providing unauthorized access to, a computer system or network or other device on which such code is stored or installed; or (ii) compromising the privacy or data security of a user or damaging or destroying any data or file without the user's consent.
Patches means updates, upgrades, patches, bug fixes and other interim modifications applicable to the Platform Services.
Platform Data means (A) any and all data provided by Vessel through the Platform; and (B) any and all data (other than Client Data) generated by the Platform, including (i) all metadata and (ii) any Client Data that has been transformed by the Platform or converted by the Platform into anonymized and non-Client identifiable data. Client acknowledges that Platform Data is used, among other things, as inputs for the proprietary algorithms of the Platform.
Process (including any grammatically inflected forms thereof) means any operation or set of operations which is performed on data or on sets of data, whether or not by automated means, including, without limitation, collection, recording, organization, structuring, storage, adaptation or alteration, access, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, restriction, erasure or destruction.
Quote means each quote or similar document between the Parties incorporating the terms of the Agreement which, among other things, sets forth the Services ordered, the term of the Services and the corresponding Fees.
Third Party Material means all or part of the Intellectual Property and Intellectual Property Rights, wholly or partially owned or controlled by a third party.
Trademarks means trademarks, tradenames, brands, trade dress, business names, domain names, social media identifiers, designs, graphics, logos and other commercial symbols and indicia of origin, whether registered or not, and any goodwill associated therewith.
User means an employee of Client or its Affiliates, an independent contractor, consultant or agent of Client or its Affiliates: (i) who is authorized by Client to access and use the Services; (ii) for whom subscriptions to the Services have been ordered; and (iii) who has been supplied user identification codes and passwords by Client (or by Vessel at Client's request).
Vessel Intellectual Property means all Intellectual Property developed by or first conceived or reduced to practice by Vessel, its Affiliates, its licensors or by any third party on Vessel's behalf relating to the Platform, Platform Data, the Services, the Documentation, all related products or services and any other Vessel's products or services.
Where the word "including" or the word "includes" is used in the Agreement, it means "including (or includes) without limitation".
In the event of any inconsistencies between the provisions set forth in the Agreement and in any Quote(s), the provisions of such Quote(s) shall prevail.
Nothing in any of Client's terms and conditions, order forms, or any documents transmitted by Client in connection with the Agreement shall be construed to modify, amend or supplement the terms of the Agreement.
The Parties acknowledge that they have had the opportunity to freely negotiate the essential provisions of this Agreement. It is the express wish of the Client that this Agreement and any related documentation be drawn up in English only. Les Parties reconnaissent avoir eu l'occasion de négocier librement les stipulations essentielles du présent Contrat et il est de la volonté expresse du Client que cette entente, ainsi que tous documents s'y rattachant soient rédigés en langue anglaise uniquement.
Subject to the terms and conditions of this Agreement and the applicable Quote(s) and payment in full of the applicable Fees, Vessel shall (i) make its Platform available to Client and its Affiliates, including associated support services (the "Platform Services"); and/or (ii) provide professional services (the "Professional Services" and collectively with the Platform Services, the "Services").
Access and use of the Services by Client and its Affiliates and the Users may be subject to specifications and/or restrictions set forth in the applicable Quote. Client acknowledges and agrees that subject to the terms of the applicable Quote, the Fees may be based on estimates, which shall be adjusted (plus or minus) from time to time based on Client's actual usage, in accordance with the metrics set out in the applicable Quote.
Vessel may provide professional services to Client, which may consist, among other things, of implementation and testing of the Platform, training on the Platform and providing related services, all as set out in the applicable separate Quote to be agreed upon between the Parties (collectively, the "Professional Services").
Client acknowledges and agrees that: Vessel's performance of the Professional Services is dependent on: (A) the assumptions, if any, made by Vessel in the applicable Quote; and (B) Client's timely and effective satisfaction of all Client obligations. Client also acknowledges and agrees that Vessel shall not be responsible for any delay in the performance of the Professional Services due to a Force Majeure event.
During the term of a Quote, Client may request in writing that changes be made to the Professional Services (each a "Change Request"). If the Change Request is accepted in writing by Vessel, such Change Request shall be deemed to have amended the applicable Quote and form an integral part thereof. All additional costs arising out of a Change Request shall be assumed by Client.
Unless otherwise agreed in writing between the Parties in a Quote, Vessel shall own all rights, title and interest in and to the deliverables and work products (including software code, specifications, reports, notes, interfaces and related Documentation) conceived, developed, acquired or reduced to practice by Vessel as part of the Professional Services rendered to the Client pursuant to the applicable Quote (the "Deliverables"), and all related Intellectual Property Rights. Vessel hereby grants to Client a non-exclusive, worldwide, royalty-free right and license to use, reproduce and modify the Deliverables for Client's internal purposes during the Term of this Agreement.
The approval procedure(s) (if any) for the Deliverables shall be set out in the applicable Quote(s).
Scheduled dates and times for the provision of Professional Services may be cancelled or rescheduled by Client without incurring any cancellation charges provided that Vessel is given at least 7 days prior written notice, failing which Client: (i) may be subject to a cancellation fee up to a maximum of 50% of the agreed upon Fee estimate; and (ii) shall reimburse Vessel for the cost of any expenses or change fees that are incurred by Vessel in connection with such cancellation or rescheduling. Vessel shall use commercially reasonable efforts to minimize all costs and expenses associated with any Client cancellation.
Subject to (i) the terms and conditions of this Agreement and the applicable Quote(s), and (ii) payment in full of the applicable Fees in accordance with the payment schedule described in the applicable Quote, Vessel shall make the Platform available to Client, its Affiliates and their Users. Vessel shall use commercially reasonable efforts to make the Platform available 24 hours a day, 7 days a week.
Client acknowledges and accepts that Vessel, from time to time and at its sole discretion, may amend or update the Platform Services. Client is required to accept all Patches necessary for the proper function and security of the Platform, as such Patches may be released by Vessel from time to time.
Vessel may suspend Client's account, access to or use of the Platform if (i) Client or a User breaches any provision of the Agreement, and such breach is not remedied within 15 days of Client receiving written notice from Vessel; (ii) Vessel detects fraud, a security breach or any other similar threat that causes or that could cause, in Vessel's reasonable opinion, damage to the Platform, Vessel's IT infrastructure or Client Data; or (iii) Vessel is undertaking scheduled maintenance. Vessel will use commercially reasonable efforts to restore the access to or use of the Platform, as soon as possible after the suspension. Any suspension by Vessel of the Platform Services shall not release Client from its payment obligations under the Agreement.
Client shall:
Except as provided herein, Client may not:
Client shall provide Vessel with all necessary Client Data, information and assistance for the performance of Vessel's obligations hereunder, under an applicable Quote, or otherwise that is reasonably requested by Vessel. Without limiting the generality of the foregoing, Client shall (i) perform the tasks and assume the responsibilities and requirements of Client specified in the applicable Quote (collectively, the "Client Responsibilities"); and (ii) ensure prompt and efficient cooperation of all its personnel who must assist Vessel for the performance of the Services.
Client is solely responsible (i) for preserving the confidentiality of the Users' and End Users' user identifications; (ii) for restricting or protecting access to Client equipment (hardware and software) required to access and use the Platform Services, and (iii) managing and regularly updating User and End User access to the Platform.
Client is responsible for all use and misuse of the Services by its Users and End Users, or their breach of the terms of the Agreement, and shall indemnify Vessel for any damages, costs and expenses suffered as a result of such use, misuse or breach.
Vessel represents and warrants that it maintains appropriate administrative, physical, and technical safeguards designed to protect the security, confidentiality, and integrity of Client Data. Vessel shall not access Client Data except and only to the extent reasonably necessary:
In no event will Vessel share Client Data with any third parties other than its subcontractors or technological partners who need to have access to Client Data for the performance of Vessel's obligations hereunder, as required by applicable law or a governmental authority, or to provide additional features and functionalities to the Client.
Vessel will retain any Client Data in its possession until deleted in accordance with this Agreement. Except as otherwise required by applicable law, Vessel will delete all Client Data in its possession:
This excludes all data entered into the Platform by the End User directly. Upon request from Client at any time, Vessel shall transfer a copy of all Client Data to Client and shall provide reasonable assistance to Client to download and store such copy of Client Data. Notwithstanding the foregoing, Client may at any time instruct Vessel to retain and not to delete Client Data, provided Client may not require retention of Client Data for more than 90 business days after termination of this Agreement, unless the Parties negotiated in good faith a fee payable by the Client to Vessel to retain Client Data for more than 90 business days after termination of this Agreement.
Client represents and warrants that it will comply with applicable privacy laws and regulations, including with respect to the collection, use, Processing, disclosure and handling of personal information that is part of Client Data or that is otherwise provided to Vessel for the purposes of this Agreement. Without limitation of the foregoing, Client represents, warrants, and covenants that: (i) it has (and will have) provided any notice and obtained all consents and rights required by applicable law to enable Vessel to lawfully Process Client Data and End User data as permitted by this Agreement; (ii) it has full right and authority to make Client Data available to Vessel under this Agreement; and (iii) Vessel's Processing of Client Data in accordance with this Agreement will not infringe upon or violate any applicable laws or any rights of any third party. Vessel represents and warrants that it will comply with all applicable privacy laws and regulations with respect to the handling of Client Data, including, without limitation, the Personal Information Protection and Electronic Documents Act (PIPEDA), and the Freedom of Information and Privacy Protection Act (FIPPA).
Vessel (or its licensors) retains any and all rights, title and interest (including all Intellectual Property Rights) in and to:
Client will acquire no rights or licenses to any Vessel property unless otherwise expressly provided in the Agreement. Client shall not remove any Intellectual Property Rights notice or the Vessel Trademarks that appears on the Documentation or redisplayed through or embodied in the Services.
Client owns all right, title, and interest in and to Client Data and Client Trademarks, including all Intellectual Property Rights related thereto. Client grants Vessel a royalty-free, worldwide and non-exclusive license to host, use, copy, reproduce, display, save, Process and transmit Client Data and Client Trademarks for the purposes of, and only to the extent necessary for, the provision of the Services and the operation of the Platform. The forgoing license shall include the right for Vessel to reasonably use and copy the Client Data for the purpose of creating aggregated and anonymized statistical analytics in respect to Services provision, use, and performance, and other Services and Users parameters and characteristics ("Aggregated Statistics"). Vessel shall own all Aggregated Statistics created from the Client Data and shall be free to (i) use such Aggregated Statistics to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other Vessel offerings, and (ii) disclose Aggregated Statistics in connection with its business.
Vessel shall own all right, title and interest in and to any suggestions, requests or recommendations for improvements or enhancement to the Services that Client (including any of the Users) may, alone or jointly with Vessel, propose or make during the term of the Agreement (collectively, "Feedback"). Client hereby irrevocably (i) assigns all rights, titles and interests in and to the Feedback to Vessel; and (ii) waives or will cause to waive, in favour of Vessel, its successors and assigns any and all moral rights that Client or a User has or may have in the Feedback in each jurisdiction throughout the world, to the fullest extent that such rights may be waived in each respective jurisdiction.
In consideration of the Services, Client shall pay the fees set out in the applicable Quote(s) (the "Fees"). Payment terms are set out in the applicable Quote(s). The Fees are not reimbursable.
Except if otherwise indicated on a Quote, Vessel reserves the right to increase the Fees from time to time and at its entire discretion, subject to providing reasonable prior written notice to Client.
If any amount owing by Client under the Agreement is overdue by more than 30 days as of the date of the applicable invoice, Vessel may, without limiting Vessel's other rights and remedies, suspend the Services to Client until such amounts are paid in full.
In addition to any other rights or remedies of Vessel, any uncontested amount not paid by Client when due shall bear interest at the rate that is the lesser of 1.5% per month or the maximum rate allowable by law.
Unless expressly stated in a Quote, the fees and costs set forth in this Agreement do not include any applicable sales, use, value-added, property, excise or any other taxes or duties of any nature whatsoever. Vessel will invoice Client for any applicable taxes in relation to any Quote, which will be added to the Fees.
The Agreement will commence on the Effective Date and will remain until the end of the Subscription Period set out in the applicable Quote (the "Term") or otherwise terminated in accordance with the terms and conditions set forth herein.
The duration of the Professional Services is set out in each applicable Quote.
Each Party may terminate the Agreement, or a Quote, at any time:
If Client terminates this Agreement or a Quote other than as set out above, all Fees owed to Vessel until the end of the then-current Term or the end of the Professional Services under a Quote, as applicable, shall remain due by Client.
The termination of the Agreement or any Quote, for any reason whatsoever, will in no way affect either Party's rights and recourses against the other Party, at law or in equity, for damages for failure to discharge an obligation under the Agreement or the Quote, as the case may be.
At the expiry or termination of the Agreement or a Quote:
The following sections of this Agreement shall survive the termination of expiry of the Agreement: Intellectual Property, Recourse, Effect of Termination, Surviving Provisions, Representations and Warranties, Limitation of Liability, Confidentiality, Non-Solicitation, and General.
Client represents and warrants to Vessel that:
Vessel represents and warrants to Client that:
Vessel disclaims any warranty, express or implied, that the Services or Client Data will remain virus-free. Support or other Services in application of the Agreement necessitated by computer viruses, or by any failure or breach of Client's security for its systems or data, including damage caused by persons lacking authorized access, are not covered under this Agreement. Except to the extent set forth above, Vessel expressly declines, on its own behalf and on behalf of its shareholders directors, officers, employees, subcontractors, agents, vendors and licensors and agents any and all express, legal or implicit representations, warranties and conditions not contained herein, including representations, warranties and conditions of commerciality, performance, non-infringement, fitness for a particular purpose and accuracy. In particular, Vessel expressly declines the following and makes no representation or warranty in these regards: (i) the fact that the Services will meet Client's operational requirements; (ii) the fact that the operation of the Services and the Deliverables will be error-free or uninterrupted or, that the results obtained from their use will be accurate or reliable; and (iii) the fact that all programming or Platform service errors can be corrected or found in order to be corrected. Client acknowledges that the functionality and interfaces of the Platform may change over time.
In no event shall Vessel be liable for any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorney's fees) arising directly or indirectly from:
To the maximum extent permitted by law, in no event may either party, its affiliates, and their respective shareholders, officers, directors, employees, subcontractors, agents, vendors and licensors be liable for (i) any indirect, incidental, extraordinary, consequential, special, punitive or exemplary damages or (ii) any loss of revenue or profits, lost or damaged data, loss of use, business interruption or any other financial loss, arising directly or indirectly from the agreement (including all of its related quotes), or caused by the services, or the misuse or inability to use the services, the deliverables or the documentation, even if such party has been advised of the possibility of such damages. This limitation of liability will apply regardless of the form of action: whether in contractual liability, application of the warranty, tort, negligence, product liability of manufacturers and vendors, strict civil liability or under any other legal theory.
The overall liability of Vessel in respect of claims of Client or of any other person arising under this Agreement shall be limited to the fees paid by Client under this Agreement during the 12-month period preceding the event from which the liability arises.
The limitations of liability set forth above shall not apply with respect to damages attributable to a Party's gross negligence or wilful misconduct.
If the Parties have entered into a non-disclosure agreement prior to the Effective Date, such agreement is hereby terminated and replaced in its entirety by the terms of this section.
The Party ("Recipient") receiving from the other Party ("Discloser") any Confidential Information, or otherwise obtaining any Confidential Information, shall keep confidential Discloser's Confidential Information and shall protect such information with the same degree of care as Recipient employs in the protection of its own confidential and proprietary information (but at least with a reasonable degree of care).
The recipient may not use Discloser's Confidential Information in any manner except as reasonably required for the purpose of the Agreement or as permitted herein.
Recipient shall not, without Discloser's prior written consent, disclose Discloser's Confidential Information to any third party, except to those of its employees, consultants, and subcontractors who have a need-to-know Confidential Information for the purpose of this Agreement and who are bound by confidentiality provisions at least as stringent as those set out herein. The recipient remains liable for any breach of these terms by its employees, consultants, or subcontractors (including, in the case of Client, the Users).
The restrictions imposed by this section shall not apply to Confidential Information that Recipient can demonstrate:
In the event Recipient becomes legally compelled to disclose any portion of Discloser's Confidential Information, Recipient immediately shall give notice thereof to Discloser and shall collaborate with Discloser reasonably and in good faith to prevent or limit the disclosure or obtain a protective order or other recourse.
Each Party acknowledges and agrees that the remedies at law for the breach of any of the provisions of this section may be insufficient, that such breach will cause irreparable harm within a short period of time, and that the other Party shall be entitled to preliminary injunctive relief or other injunctive relief against any such violation without the necessity of proving actual damages. Such injunctive relief shall be in addition to, and in no way in limitation of, any and all other remedies the other Party shall have at law and in equity for the enforcement of those undertakings and provisions.
Client agrees that, during the term of the Agreement and for a period of 12 months after the expiry or termination of the Agreement, it shall not, directly or indirectly, hire any employee, subcontractor, or independent contractor of Vessel or solicit, induce or attempt to induce any person who is an employee, subcontractor, or independent contractor of Vessel or was an employee, subcontractor or independent contractor during the 12-month period immediately preceding such solicitation, to terminate his or her employment with Vessel. General advertising performed by Client and not specifically directed at employees of Vessel shall not be deemed a violation of this section. In the event Client breaches this section, Client shall be liable to Vessel for an amount equal to 100% of the annual base compensation of the individual concerned in his/her new position, for a period of one (1) year. Although this payment is the exclusive remedy of the aggrieved Party to recover an amount from the other Party in case of breach of this section, such breach shall be considered a material violation of the Agreement, and Vessel shall have the right to terminate this Agreement.
Client acknowledges and agrees that Vessel may mention, in its corporate brochures, marketing material, press releases and website, that Client is a customer of Vessel and uses the Services. In that regard, Client agrees that Vessel may use Client's corporate names and logos, subject to applicable Client trademark and logo policies.
Vessel may subcontract any of or all of its obligations under the Agreement to any third party, provided Vessel shall remain responsible for any breach of this Agreement and any Quote by its subcontractors.
The Agreement will be governed by, interpreted and construed in accordance with the laws of the Province of Quebec, Canada and the laws of Canada applicable therein, other than rules governing conflicts of laws. Each of the Parties agrees that any dispute arising out of or in connection with this Agreement, including any question regarding its existence, validity or termination shall be submitted to the exclusive jurisdiction of the courts of the Province of Quebec, Canada (district of Montreal). The foregoing choice of jurisdiction and venue shall not prevent either Party from seeking injunctive relief with respect to a violation of Intellectual Property Rights, confidentiality obligations or enforcement or recognition of any award or order in any court of competent jurisdiction.
In no event shall either Party be responsible or liable for any failure or delay in the performance of its obligations hereunder (except for any payment obligations) arising out of or caused by, directly or indirectly, by a Force Majeure event; it being understood that the Party subject to a Force Majeure event shall use reasonable efforts which are consistent with accepted practices to resume performance as soon as practicable under the circumstances.
The Agreement is an agreement between independent legal entities and neither Party is the agent or employee of the other Party for any purpose whatsoever. The Parties do not intend to create a partnership or a joint venture between themselves. Neither Party shall have the right to bind the other to any agreement or to incur any obligation or liability on behalf of the other Party.
The Agreement (including all related Quote(s) which are an integral part thereof), constitutes the complete agreement between the Parties and cancels and replaces all prior or concomitant agreements or representations or warranties, oral or written, between the Parties concerning the subject matter of the Agreement. The Agreement may not be modified or amended, in whole or in part, except in writing signed by a duly authorized representative of each Party; no other act, document, usage or custom will be deemed to modify the Agreement.
Neither Party may assign the Agreement without the prior written consent of the other Party, which shall not be unreasonably withheld or delayed; provided, however, that any Party may, without such consent, assign the Agreement (i) to any person in the event of a transfer to such person of all of its shares, all or substantially all of its assets, or a merger, amalgamation or similar business combination with such person; or (ii) to an Affiliate in connection with a reorganization of such Party.
All obligations set forth in the Agreement will bind and apply to the benefit of the respective successors and assigns of the Parties.
If a competent court rules a provision of the Agreement invalid, illegal or unenforceable, the validity, legality or enforceability of the other provisions of the Agreement shall in no way be affected or compromised.
The failure of a Party to enforce any provision of the Agreement shall not constitute a waiver of such provision or the right of such Party to enforce such provision and every other provision.
All notices, demands or other communications required or permitted to be given or made under the Agreement shall be in writing and delivered personally or sent by prepaid registered post or by email addressed to the intended recipient thereof at its address or email address, and marked for the attention of such person (if any) as is set out on the signature block of the Agreement, or at such other address as a Party may by notice advise and shall be effective upon receipt. Notices sent by email shall be deemed to have been received by its recipient on the day of reception, if received before 4:00 p.m. in the time zone of the receiving party during any business day, otherwise it is deemed received the next business day.
This Data Processing Agreement ("DPA"), made and entered into as of the time and date of click-through or tapping action (the "Effective Date"), is a legal agreement between you ("Client" or "you") and Vessel Funds Inc., its affiliates or subcontractors (collectively, "Vessel") and governs the processing of personal information via the Platform and related services provided by Vessel.
In this DPA, the following definitions shall apply, unless the context otherwise requires:
Applicable Privacy Laws means any applicable law or regulation pertaining to data protection, privacy, and/or the processing of personal information, to the extent applicable in respect of a party's obligations under this DPA, including Canadian federal and provincial privacy laws, the General Data Protection Regulation (EU) 2016/679 (the GDPR) and any other laws and associated regulations relating to the protection of Personal Information and the privacy of individuals.
Data Subject means any natural person whose Personal Information is Processed.
Confidentiality Incident means any a) access to Personal Information; b) use of Personal Information; c) disclosure of Personal Information, which are not authorized by law; or d) loss of Personal Information or any other breach of the protection of such information.
Personal Information means any information relating to a Data Subject which allows said individual to be identified either directly or indirectly.
Processing means any collection, use and/or communication of Personal Information, including the amendment, hosting, access, anonymization, deidentification, and/or destruction of the Personal Information. The terms "Process" or "Processed" have the same meaning.
Sub-Processors means the person or entity who processes the Personal Information in the name and on behalf of Vessel based on a written agreement destined to transpose Vessel's data protection obligations towards the Client but who is not an employee or a representant of Vessel.
All other defined terms used in the Agreement shall apply equally in this DPA.
Unless otherwise agreed upon in writing by the Parties, the provisions of this DPA apply to each Processing operation carried out under the Agreement.
In any event, the Parties agree to comply with Applicable Privacy Laws.
Client ensures that Processed Personal Information in connection with the Agreement has been and will continue to be collected, used and disclosed in accordance with Applicable Privacy Laws.
Client shall provide Vessel with Personal Information together with such other information as Vessel may reasonably require in order for Vessel to provide the Services.
The instructions given by Client to Vessel in respect of the Personal Information shall at all times be in accordance with Applicable Privacy Laws. The Agreement and this DPA formalize such instructions.
Client will retain control and responsibility for all Personal Information and will have immediate access to it at any time upon request to Vessel, in particular with respect to privacy impact assessment ("PIA") requirements.
Vessel undertakes to only Process Personal Information in accordance with Client's instructions, which are notably provided for in the Agreement.
If Vessel considers that an instruction from Client constitutes a violation of Applicable Privacy Laws, it shall inform Client as soon as possible.
Vessel will Process Personal Information only for the purposes of providing the Services, as described in the Agreement.
Vessel will not store Personal Information beyond the retention period set forth in the Agreement, except in the event of any legislative or regulatory provision or any administrative or judicial decision stating the contrary.
Vessel shall make commercially reasonable efforts to cooperate with Client, in particular by providing it with the necessary documentation to demonstrate compliance with all of its PIA obligations and for the performance of audits, including inspections, subject to at least 30 days written notice prior to the date of the audit and within normal business hours, by Client or another auditor (that is independent and not a competitor of Vessel) that Client has mandated, the whole at Client's costs.
Vessel shall inform, without undue delay, Client in case of a request from an administrative or judiciary authority received by Vessel related to the Processing of Personal Information made in respect of the Services.
In the event Client makes such a request or grants such authorization, Vessel shall ensure that all of Vessel's obligations under the Agreement are complied with by any company replacing Vessel, regardless of its rank or method of intervention, by expressly providing for these same obligations in the contract binding Vessel to the said company or Vessel to any Sub-Processor, so that they undertake to respect the Agreement.
Vessel hosts, uses and more generally Processes the Personal Information in Quebec, Montreal.
Vessel shall ensure that only such of its employees who need to have access to enable Vessel to meet its obligations under the Agreement shall have access to the Personal Information.
Vessel shall ensure that all such employees have undergone training in relation to the protection of Personal Information, and that they are bound by confidentiality undertakings for the Processing of the Personal Information.
Client will inform and assist Data Subjects when they have requests, questions, complaints or any other form of announcement. If the Data Subject unduly contacts Vessel, Vessel shall, without delay, transfer the request to Client, unless otherwise provided for in this DPA.
Vessel assists Client with Data Subjects' requests which may be received from Data Subject to whom the Personal Information refers.
Vessel uses appropriate organizational and technological processes and procedures to guarantee the security of its premises and to keep Personal Information safe from unauthorized use, disclosure or access, loss, accidental or unlawful destruction, theft, alteration, distortion, disclosure or any other modification, such as, the de-identification and encryption of Personal Information; the ability to ensure the ongoing confidentiality, integrity and availability of Processing systems and services; the ability to restore the availability and access to Personal Information in a timely manner in the event of an incident and a process for regularly testing, assessing and evaluating the effectiveness of technical and organizational measures for ensuring the security of the Processing.
In case of modification of the implemented technical and organizational security measures related to Personal Information subject to this DPA, Vessel shall notify Client without delay.
Vessel will notify Client without delay of any Confidentiality Incident, or attempted or suspicion of an Incident, that may impact the Processing of the Personal Information in connection with the Agreement.
Vessel must then allow to Client to perform any reasonable verification in relation with this Incident.
Vessel endeavours to cooperate with Client in implementing any required corrective action agreed between the parties.
If any provision of this DPA is null and void or otherwise unenforceable, the remaining provisions will remain in full force.
At the termination of the Agreement, Vessel will delete or return all Personal Information to Client at Client's choice, and delete existing copies or other reproductions as set forth in the Agreement, unless the law requires storage of the Personal Information.
Vessel shall certify the destruction of the Personal Information in writing, as soon as it is completed.
The provisions in this DPA shall remain in effect as long as Vessel has received Client's instruction to Process Personal Information in connection with the Agreement.
The provisions in this DPA relating to the protection of Personal Information shall survive termination of the Agreement.
In the event of any conflict between this DPA and the Agreement, the DPA shall take precedence over the remainder of the Agreement. The DPA is deemed to be part of the Agreement, and may only be modified by written agreement of the Parties. The Parties agree to negotiate in good faith any amendments to this DPA that may reasonably be required to ensure that the Processing of Personal Information by the Parties in connection with the Services complies with Applicable Privacy Laws.