COCONUT SOFTWARE, INC.
TERMS OF SERVICE (V.6/4/18)
June 4, 2018
BEFORE USING COCONUT SOFTWARE’S SERVICES (AS DEFINED BELOW), PLEASE READ THESE END USER TERMS OF SERVICE (THIS “AGREEMENT”). THIS AGREEMENT IS INCORPORATED BY REFERENCE INTO THE ORDER FORM EXECUTED BY THE COMPANY IDENTIFIED AS THE “CUSTOMER” IN THE ORDER FORM (“CUSTOMER”) AND COCONUT SOFTWARE CORP. (“COCONUT SOFTWARE”). PURSUANT TO THIS AGREEMENT, CUSTOMER SHALL RECEIVE THE RIGHT TO ACCESS AND USE COCONUT SOFTWARE’S SCHEDULING PLATFORM KNOWN AS “COCONUT CALENDAR”; AND/OR RECEIVE OTHER SERVICES, INCLUDING PROFESSIONAL SERVICES, FROM COCONUT SOFTWARE (THE “SERVICES”). THIS AGREEMENT AND THE ORDER FORM TOGETHER FORM A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN CUSTOMER AND COCONUT SOFTWARE, EFFECTIVE AS OF THE EARLIEST OF THE DATE OF MUTUAL EXECUTION OF THE ORDER FORM OR THE DATE IN WHICH THE CUSTOMER USES THE SERVICES.
1.1 Provision of Services. Coconut Software shall make the Services available to Customer and its users on a subscription basis pursuant to this Agreement and the applicable Order Forms during the Service Term. Customer agrees that its purchase of the Services is neither contingent upon the delivery of any future functionality or features nor dependant upon any oral or written public comments made by Coconut Software with respect to future functionality or features.
1.2 Services. Unless otherwise specified in the applicable Order Form or the Statement of Work, Services are purchased as subscriptions. Professional Services may be purchased by Customer at Coconut Software’s then current rates and shall be detailed in the corresponding Statement of Work.
2.1 Coconut Software Responsibilities. Coconut Software shall: (i) provide to Customer basic support for the Services at no additional charge, and/or upgraded support if purchased, provided that the terms of such upgraded support are described in the Order Form; (ii) make the Services available in accordance with Coconut Software’s policies; and (iii) provide the Services in accordance with applicable laws and government regulations.
2.2 Third-Party Communications. The Services allow Customer to communicate with an individual or an organization other than Coconut Software (a “Third Party”) to book appointments. Any communication with a Third Party, including any services and any advice, opinion or information that Customer may obtain by way of such communications through the Services, or any payment transaction facilitated or enabled by the Services, is between Customer and this Third Party. Coconut Software is not responsible for the content of these communications and expressly disclaims any responsibility or liability for any claims, losses or damages that may arise as a result of such communications or failure of communications. Coconut Software reserves the right, but has no obligation, to become involved in any way with any dispute between Customer and another party arising out of or that is in connection with the Services. Coconut Software is not responsible for the conduct, whether online or offline, of any user of the Services.
2.3 Links. Any links or references to third party information are provided solely as a convenience to Customer. These links do not and should not be taken as implying an endorsement or approval of any kind of the content or reliability of those websites or references or the activities of the people, organizations, and/or businesses responsible. When Customer uses a link to go from the Services to another website or service, browsing and interaction is subject to that website’s own rules and policies, not those of Coconut Software. Coconut Software shall have no liability to the Customer for any content that Customer may find to be offensive, indecent, or objectionable.
2.4 Customer Responsibilities. Customer shall (i) be responsible for users’ compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of all the data uploaded into the Services (“Customer Content”) and of the means by which it acquired Customer Content, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Coconut Software promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with Coconut Software’s instructions and applicable laws and government regulations. Some updates to the Services may be optional or require some action on Customer’s part. If Customer does not complete any action, the Services may not function properly or at all. Coconut Software will not be responsible for any problem caused by Customer’s failure to complete any action, voluntary or required, for any update.
2.5 Rules of Use. Customer shall not (a) sell, resell, rent or lease the Services; (b) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights; (c) use the Services to store or transmit Malicious Code, as such term is defined hereinafter; (d) interfere with or disrupt the integrity or performance of the Services or third-party data contained therein; or (e) attempt to gain unauthorized access to the Services or their related systems or networks.
3.1 Fees. Customer shall pay Coconut Software all the fees specified in the Order Forms (the “Fees”). Except as otherwise provided in the Order Form, all Fees are quoted in USD (United States dollars) currency; Fees are based on Services purchased and not on actual usage; payment obligations are non-cancellable; and Fees are non-refundable. Fees for the Services will be invoiced in advance in accordance with the terms of the Order Form.
3.2 Payment Terms. Unless otherwise stated in the Order Form, payment is due within thirty (30) days of the invoice date. Any payment not received from Customer by the due date shall accrue (except with respect to charges then under reasonable and good faith dispute), at the lower of 1.5% or the maximum rate permitted by law of the outstanding balance per month from the date such payment is due until the date paid. If any Customer account is 30 days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any other rights and remedies (including the termination rights set forth in this Agreement), Coconut Software reserves the right to suspend the Services without liability to Coconut Software, until such account is paid in full.
3.3 Taxes. Fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and Customer shall be responsible for payment of all such taxes, levies, or duties, excluding only taxes based solely on Coconut Software’s income. If Coconut Software has the legal obligation to pay or collect taxes for which Customer is responsible, the appropriate amount shall be invoiced to and paid by Customer unless Customer provides Coconut Software with a valid tax exemption certificate authorized by the appropriate taxing authority.
4.1 Term of the Agreement. This Agreement commences on the last date of execution of the Order Form and continues until all Services expire or this Agreement is mutually terminated by the parties.
4.2 Term of the Services. The Services are offered for the initial term of service specified in the Order Form (the “Initial Term”). The Initial Term shall begin on the Contract Start Date stated in the Order Form. Following the Initial Service Term, Services shall renew in accordance with the terms of the Order Form (each, a “Renewal Term”). If, during the Initial Term or any Renewal Term, Customer adds any additional Services, the amount of Customer’s Fees shall increase the sum set forth in the Order Form and, the Service Term for any such additional Services shall be coterminous with the Initial Term or any Renewal Term in effect at the time.
4.3 Termination of the Agreement. This Agreement and any Service may be terminated by either party for cause: (a) upon thirty (30) days written notice of a material breach to the other party if such breach remains uncured at the expiration of such period; or (b) if either party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
4.4 Early Termination. If Customer wishes to terminate the Services under this Agreement prior to the expiration of the then current Term and such termination is not due to Coconut Software’s breach, all Fees which would otherwise be due through the end of the Term in effect at the time shall be due and payable within thirty (30) days of the effective date of termination and no refunds for pre-paid Services will be provided. The parties agree that these early termination charges are a reasonable estimate of anticipated actual damages and not a penalty.
5.1 Grant of License. Subject to the terms herein, Coconut Software grants Customer a non-exclusive, non-transferable, non-assignable, worldwide limited license to access and use the Services solely for Customer’s own business purposes and only for the specific number of users, locations and time periods as set forth in each fully executed Order Form.
5.2 Reservation of Rights. Subject to the limited rights expressly granted hereunder, Coconut Software reserves all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
5.3 Restrictions. Customer shall not, and shall not allow third parties to: (i) license, sublicense, lease, rent, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services in any way provided however that the Customer may permit use of Services, strictly in accordance with this Agreement, by third parties working on behalf of the Customer; (ii) access (or attempt to access) any of the Services by any means (including automated means) other than through the User ID that is provided by Coconut Software; (iii) reverse engineer, adapt, translate, decompile, or otherwise derive the source code for the Services; or access the Services in order to copy or imitate any ideas or features; or build a product or service similar to the Services; or use similar features, software, functions or graphics as those of the Services, whether or not intended to compete with the Services; (iv) use the Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit Malicious Code or material in violation of third-party privacy rights, or (v) access the Services for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purpose.
5.5 Excluded Customer Content. Customer acknowledges that the Services are not intended to be a repository of personal identifiable information (“PII”) or personal data that may be considered sensitive or privileged, such as financial information, non-public personally identifiable information that could be legally considered private or sensitive, including without limitation, social insurance numbers, driver’s license numbers, birth dates, personal bank account numbers, and credit card numbers (the “Excluded Customer Content”). Notwithstanding the above, in the event that Customer or any of its users uploads Excluded Customer Content to the Services in violation of this Agreement, Customer agrees to remove such information immediately, or at its reasonable discretion and upon prior written notice, Coconut Software may purge such data from its systems.
5.6 Destruction of Customer Content. Upon written request by Customer made within 30 days after the effective date of termination, Coconut Software will provide Customer with temporary access to the Services so that Customer can retrieve its Customer Content. After such 30-day period, Coconut Software shall have no obligation to maintain or provide any Customer Content and shall reasonably thereafter, unless legally prohibited, delete all Customer Content in Coconut Software’s systems or otherwise in its possession or control.
6.1 Definition of Confidential Information. As used herein, “Confidential Information” means all confidential information disclosed by a party (“Disclosing Party“) to the other party (“Receiving Party“), that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including but not limited to Customer Content, the terms and conditions of this Agreement and any Order Form, as well as business and marketing plans, technology and technical information, product plans and designs, and business processes disclosed by either party. However, Confidential Information (other than Customer Content) shall not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party, (ii) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party, (iii) is received from a third party without breach of any obligation owed to the Disclosing Party, or (iv) was independently developed by the Receiving Party.
6.2 Protection of Confidential Information. Except as otherwise permitted in writing by the Disclosing Party: (i) the Receiving Party shall use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but in no event less than reasonable care); (ii) the Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (iii) the Receiving Party shall limit access to Confidential Information of the Disclosing Party to those of its and its Affiliates’ employees, contractors and agents who need such access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein. Neither party shall disclose the terms of this Agreement to any third-party other than its Affiliates and their legal counsel and accountants without the other party’s prior written consent.
6.3. Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party if it is compelled by law to do so, provided the Receiving Party gives the Disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party’s cost, if the Disclosing Party wishes to contest the disclosure. If the Receiving Party is compelled by law to disclose the Disclosing Party’s Confidential Information as part of a civil proceeding to which the Disclosing Party is a party, and the Disclosing Party is not contesting the disclosure, the Disclosing Party will reimburse the Receiving Party for its reasonable cost of compiling and providing secure access to such Confidential Information.
7.1 Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form and Statement of Work, if applicable, is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
7.2 Functionality Warranty. Coconut Software warrants that the Services will operate in a manner consistent with general industry standards reasonably applicable to the provision hereof and in substantial conformity with the then current version of the applicable documentation.
7.3 Data Security and Warranty. Coconut Software has implemented Appropriate Security Measures (as hereinafter defined) and maintains the Services at reputable third-party Internet service providers and co-location facilities. “Appropriate Security Measures” means commercially reasonable efforts to ensure that the Customer Content will be maintained accurately and safeguarded as well as technical and physical controls to protect Customer Content against destruction, loss, alteration, unauthorized disclosure to third parties or unauthorized access by employees or contractors employed by Coconut Software, whether by accident or otherwise.
7.4 Additional Warranties. Coconut Software represents and warrants that: (i) the Services will be provided in a professional, timely and workman like manner by persons with the proper skill, training and background, and consistent with generally accepted industry standards; (ii) the Services will comply with all written specifications; (iii) the Services will be free of material defects; (iv) the Coconut Software technology shall not deliver any viruses, Trojan horses, trap doors, back doors, Easter eggs, worms, time bombs, cancelbots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate the contents of any databases and/or the normal operation of any computer systems (“Malicious Code”); (v) at the time of delivery, all Documentation required hereunder (if any) shall be complete so as to enable Customer personnel with ordinary skills and experience to utilize the Services for the purposes for which they are being acquired by Customer, (vi) it will at all times utilize reasonable and appropriate practices and technologies common and prevalent in Coconut Software’s industry to avoid causing damage to Customer’s computer systems or other technology.
7.5 Disclaimer. Except as expressly provided herein, Customer acknowledges and agrees that the Services are provided on an “As Is”, as available basis. Other than as expressly provided herein, COCONUT SOFTWARE DISCLAIMS WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES INCLUDING WITHOUT LIMITATION THE CONDITIONS AND/OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR ANY PURPOSE TO THE MAXIMUM EXTENT PERMITTED BY LAW. COCONUT SOFTWARE DOES NOT WARRANT THAT THE SERVICES WILL MEET THE CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FURTHER, COCONUT SOFTWARE DOES NOT WARRANT THAT ALL ERRORS IN THE SERVICES CAN BE CORRECTED.
EXCEPT FOR DAMAGES ARISING FROM BREACHES OF CONFIDENTIALITY AND EITHER PARTY’S INDEMNIFICATION OBLIGATIONS HEREIN, IN NO EVENT SHALL EITHER PARTY’S LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, (1) IN THE AGGREGATE, EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER HEREUNDER OR, (2) WITH RESPECT TO ANY SINGLE INCIDENT GIVING RISE TO LIABILITY, EXCEED THE AMOUNT PAID OR PAYABLE BY CUSTOMER HEREUNDER IN THE TWELVE MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY. IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR REVENUES OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, COVER OR PUNITIVE DAMAGES HOWEVER CAUSED, WHETHER IN CONTRACT, TORT OR UNDER ANY OTHER THEORY OF LIABILITY, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE FOREGOING DISCLAIMER SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
9.1 Coconut Software Indemnification. Coconut Software shall indemnify, defend and hold harmless the Customer against any loss, damage or cost (including reasonable attorney’s fees) incurred in connection with claims, demands, suits or proceedings (“Claims”) made or brought against Customer by a third party alleging that the use of the Services, as contemplated hereunder, infringe the intellectual property rights of a third party. Notwithstanding the foregoing if Coconut Software reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party’s intellectual property rights then Coconut Software may, at its expense: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other software, services or other material of equivalent functions and efficiency that is not subject to an action of infringement; or (iii) modify the applicable software, support services or other material so that there is no longer any infringement or breach, provided that such modification does not adversely affect the capabilities of the Services as set out herein. Coconut Software shall have no liability respecting any Claim of infringement or breach as aforesaid to the extent such Claim is based upon the combination, operation or use of the Services with other equipment or software not supplied by Coconut Software or in a manner not consistent with Coconut Software’s instructions. THIS SECTION SETS FORTH COCONUT SOFTWARE’S SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT.
9.2 Customer Indemnification. Customer agrees to indemnify, defend and hold Coconut Software harmless against any loss, damage or costs (including reasonable attorney’s fees) incurred in connection with Claims made or brought against Coconut Software by a third party arising from or relating to Customer’s use of the Customer Content or the Services in violation of this Agreement.
9.3 Mutual Provisions. Each party’s indemnity obligations are subject to the following: (i) the aggrieved party shall promptly notify the indemnifier in writing of the Claim; (ii) the indemnifier shall have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party shall cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
10.1 Publicity. Customer agrees that Coconut Software may use Customer’s name and logo on Coconut Software’s website, and as a part of a general list of customers for use and reference in corporate, promotional and marketing literature.
10.2 Assignment. Neither party shall assign its rights or delegate its duties under the Agreement either in whole or in part without the prior written consent of the other party, except to a party that acquires all or substantially all of the assigning party’s assets as part of a corporate reorganization, merger or acquisition. The Agreement will bind and inure to the benefit of each party’s successors and permitted assigns.
10.4 Amendments. No amendment, supplement, modification, waiver or termination of this Agreement shall be binding unless executed in writing by the Parties to be bound thereby.
10.5 Governing Law. This Agreement shall be construed in accordance with the laws of the Province of Saskatchewan, excluding its conflicts of law rules. Any disputes in relation to this Agreement shall be brought to the courts of competent jurisdiction of the Saskatoon, Saskatchewan.
10.6 Relationship. The Parties are independent contractors. This Agreement does not create a joint venture, partnership, employment, franchise, or agency relationship exists between Customer and Coconut Software.
10.7 Waiver and Severability. The failure of either party to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by such party in writing. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect.
10.8 Force Majeure. Neither party will be liable for any failure or delay in its performance under the Agreement, due to any cause beyond its reasonable control provided that the delayed party (a) gives the other party prompt notice of such cause, and (b) uses reasonable commercial efforts to correct promptly such failure or delay in performance.
10.9 Entire Agreement and Language. This Agreement, together with any applicable Order Form(s) (including any other documents referenced therein), comprises the entire agreement between Customer and Coconut Software regarding the subject matter contained herein and supersedes all prior or contemporaneous negotiations, discussions or agreements. In the event of any conflict between the terms of this Agreement and the terms of any Order Form, the terms of the Order Form shall prevail. It is the express wish of the parties that this agreement and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
10.10 Surviving Provisions. The sections titled “Fees” “Payment Terms,” “Proprietary Rights,” “Confidentiality,” “Warranties and Disclaimers,” “Mutual Indemnification,” “Limitation of Liability,” Surviving Provisions,” and “General Provisions” shall survive any termination or expiration of this Agreement.
If you have questions regarding this Agreement, please contact us at:
121 Research Drive, Suite 102