Terms of Service

Last Modified: June 20, 2024

 These Terms of Service (the “Service Terms”) and together with all executed Order Forms and their schedules and exhibits (the “Agreement”) govern Client’s use of the Services provided by Una Software Inc (“Una”). By accepting this Agreement, either by: (i) clicking a box indicating acceptance or (ii) executing an Order Form that references this Agreement, Client agrees to and accepts the terms of this Agreement.

 This Agreement is effective between Una and Client as of the date of Client’s acceptance of this Agreement. Una may revise these Service Terms at any time and at Una’s sole discretion. Any non-material change to these Service Terms will become effective on the date the change is posted. Any material changes to these Service Terms will be effective: (i) immediately if you are a new Client; and (ii) if you are an existing Client, upon the earlier of (a) thirty (30) days after notice is provided of such changes, which notice may be provided by updating the “Last Modified” date above, through email or through the Services, or (b) your acceptance of the Agreement containing updated Service Terms.

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1. DEFINITIONS

“Affiliate” means, in relation to an entity, any other entity that controls, is controlled by, or is under common control with, such entity. For purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.

 “Anonymized Data” means data, information and materials that cannot be identified as being related to any individual or company.

 “Client” means in the case of an individual accepting this Agreement on his or her own behalf, such individual, or in the case of an individual accepting this Agreement on behalf of Client or other legal entity, the Client or other legal entity for which such individual is accepting this Agreement, and Affiliates of that Client or entity (for so long as they remain Affiliates).

 “Client Data” means all electronic data or information submitted by Client and/or its Affiliates to the Subscription Services or passed through to Una via Client Software.

 “Client Software” means the software components that are downloaded to a client computer to provide access to the Subscription Services. This includes “add-ins” that may provide extended functionality to other client applications such as spreadsheet programs. Client Software and Subscription Services are referred to herein as the “Services”.

 “Control” when used to describe the relationship between two entities means that one entity holds a beneficial interest in greater than fifty (50%) percent of the voting shares of the other entity, and “controls” and “controlled by” have corresponding meanings.

 “Documentation” means the standard user guides and material manuals provided to Client to assist in the use and operation of the Subscription Service and Client Software.

 “Fees” means collectively, the Subscription Fees and the Setup Fees and any other fees set out on an Order Form.

 “Order Form” means a written document in the form provided by Una which is executed by the parties and specifies the Subscription Fees, Services Period, Client’s authorized users, and any other additional commercial terms agreed by the parties.

 “Services Period” means the period for which the Subscription Services will be offered to Client, as specified in the applicable Order Form(s) executed by the parties or at the time of subscription.

 “Setup Fees” means the one-time fees payable in advance by Client to Una for the setup of Services, as set forth in the applicable Order Form.

 “Subscription Fees” means the subscription fees, as specified in the applicable Order Form or at time of subscription, payable by Client to Una for the right to receive access to the Services.

 “Subscription Services” means the Una’s revenue operating system, and any modifications, enhancements, updates, releases, and versions of such services that Una provides to Client pursuant to this Agreement.

 “Use” means to directly or indirectly load, execute, access, employ, utilize, store, or display the Services.

2. GRANT OF LICENSE

a. Access to the Subscription Services. For the duration of the Services Period and subject to Client’s payment obligations, and except as otherwise set forth in this Agreement, Client will be provided with the non exclusive, non-assignable, royalty-free limited right to Use the Subscription Services: (i) for Client’s internal business purposes; (ii) in accordance with the Documentation; and (iii) in accordance with, and as set forth in the applicable Order Form. To access the Subscription Services, Una grants the Client a non-exclusive, non-assignable, royalty-free license to download and install the required Client Software for the duration of the Services Period. Client may use the Documentation and Client Software solely in connection with its Use of the Subscription Services. Una will deliver to Client via e-mail the URLs, user IDs and passwords required to access the Subscription Services. Client will be responsible for electronic downloading of the Client Software from Una’s web site.

b. Client Affiliates. The license granted herein is also granted to all Client Affiliates, provided such Client Affiliates shall be bound by all the terms of this Agreement to the same extent as Client. For the avoidance of doubt Client will be directly responsible for any breaches of this Agreement by any Client Affiliates. Client acknowledges and agrees that it shall be liable for any breach of any term of this Agreement by any Client Affiliate. Upon request from Una, from time to time, Client agrees to provide to Una a certificate from an officer of Client certifying the full legal names, jurisdictions, and contact information of all Client Affiliates, including a description of the relationship between such Client Affiliates and Client.

c. Restrictions and Obligations. Client acknowledges that the Services and their structure, organization and source code constitute valuable trade secrets of Una and/or its providers and licensors. Accordingly, Client agrees not to (or permit its Affiliates or authorized users to): (a) modify, adapt, alter, translate, or create derivative works from the Services; (b) merge the Services with other software; (c) sublicense, lease, rent, loan, distribute, host, outsource or otherwise transfer the Services to any third party; (d) reverse engineer, decompile, disassemble, or otherwise attempt to derive the source code for the Services; or (e) otherwise Use or copy the Services except as expressly allowed in Section 2a. Client shall: (i) have sole responsibility for obtaining all consents and third-party licenses, and providing all necessary notices in accordance with applicable laws to ensure Client Data can be shared with Una and used by Una as contemplated herein; and (ii) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Client Data.

3. INTELLECTUAL PROPERTY RIGHTS

a. Proprietary Rights. The Client Software and Documentation, the Software used to provide the Subscription Services and all worldwide intellectual property rights therein, are the exclusive property of Una and/or its providers and licensors . All rights in and to the Services, Client Software and Documentation not expressly granted to Client herein are reserved by Una. Client will not remove, alter, or obscure any proprietary notices (including copyright notices) of Una on the Subscription Services, Documentation or Client Software.

b. Client Data. As between Client and Una, Client retains all ownership and rights in any Client Data. Una shall only use, modify, or disclose Client Data in accordance with applicable laws and solely to perform its obligations or exercise its rights under this Agreement. For the duration of the Services Period plus any additional post-termination period during which Una provides Client with access to the data for export purposes, Client hereby grants Una and its providers the right to use, process and transmit Client Data, in accordance with this Agreement, in order enable Una to: (a) provide the Services to Client; (b) produce Anonymized Data for the development of new and improved service offerings; and (c) develop functional improvements for the Services. Una shall own all rights, title, and interest in and to Anonymized Data.

c. Feedback. Una shall have a royalty-free, worldwide, transferable, sublicenseable, irrevocable, perpetual, unrestricted license to use or incorporate into the Services or any other products or services any suggestions, enhancement requests, recommendations or other feedback provided by Client, its Affiliates and authorized users relating to the Services.

4. PAYMENT TERMS AND AUDIT RIGHTS

a. Payment Terms. The applicable terms governing fees for the Services shall be set out in the Order Form or made available to Client at the time of accepting the Agreement. All payments shall be made in US dollars unless otherwise agreed on an Order Form. Any amounts owing from Client to Una under this Agreement that remain unpaid when due will accrue interest at twelve percent (12%) per annum (1% per month) or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. Client acknowledges that it will be fully responsible for payment (whether by payment to Una for taxes levied on invoices or by self-assessing and remitting taxes directly to the applicable taxing authority) of all sales, use, excise and other taxes, duties, and charges (other than taxes based on Una’s income), and any related penalties and interest (unless such penalties or interest are a result of the Una’s failure to pay taxes which were remitted to it by Client on a timely basis) in connection with any payments required to be made by it under this Agreement.

b. Subscription Fees. Subscription Fees will be billed annually on the first day of each Services Period billing cycle until the end of the Services Period, unless otherwise specified in the applicable Order Form. Unless Client cancels their Services Period renewal per this Section 4b, upon expiry of Client’s initial Services Period, on the day the initial Services Period expires, the Services Period shall be automatically renewed for an additional term of the same length as the initial Services Period. Client will be charged in full at the then-current price for the Subscription Services for each such renewed Services Period. Client may cancel their Services Period renewal by emailing cancelation instructions to contracts@unasoftware.com at least 30 days prior to the Services Period auto-renewal date.

c. Invoicing and Payment. Fees may be collected and processed by Una or by a third-party service or invoiced to Client. Subscription Fees may be invoiced and/or charged on a monthly or annual basis, all as specified in the applicable Order Form or at the time of subscription. Unless otherwise stated in an invoice or the applicable Order Form, invoiced fees are due net thirty (30) days from the invoice date and all fees are non-refundable. If Client’s payment method expires, is invalid, or is otherwise not able to be charged for Subscription Fees for any reason, Client’s subscription may not be continued or renewed (as applicable).

d. Audit Rights. Una, or its representatives, shall have the right during the term of this Agreement, in a manner that does not interfere with Client’s normal operations, to audit Client’s and Client Affiliates’ Use of the Services to the extent required to verify the fees properly payable by the Client hereunder and the Use of the Services by the Client and Client Affiliates hereunder. Upon the conclusion of any audit, Client shall promptly pay to Una any amount of underpaid fees based on the Una’s standard list of prices for the Services in effect at the time of the audit, plus interest at the rate set forth in Section 4(a) above in respect of the underpaid amounts from the date originally due.

e. Suspension of Service. If Client’s fees are thirty (30) days or more overdue (except with respect to fees then under reasonable and good faith dispute), in addition to any of its other rights or remedies, Una reserves the right to suspend the Services provided to Client, without liability to Client, until all outstanding fees are paid in full.

5. CONFIDENTIALITY

Each party (the “Disclosing Party” for the purposes of this Section 5) may from time to time during the term of this Agreement disclose to the other party (the “Receiving Party” for the purposes of this Section 5) certain Confidential Information (as defined below). The Receiving Party shall hold in strict confidence the Confidential Information of the Disclosing Party using the same degree of care which the Receiving Party ordinarily uses with respect to its own Confidential Information, but in no event with less than reasonable care. The Receiving Party shall not use the Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall limit the disclosure of the Confidential Information of the Disclosing Party to the employees or agents of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement, and who are, with respect to the Confidential Information of the Disclosing Party, bound in writing by confidentiality terms no less restrictive than those contained herein. For the purposes of this Section, “Confidential Information” means any non-public or proprietary information of the Disclosing Party disclosed to the Receiving Party, either directly or indirectly, in writing, orally or by inspection of tangible objects, including product information, client lists, know-how, program concepts, trade secrets and the terms of this Agreement. Client’s Confidential Information includes data for use in the Services provided securely by the Client to Una either by electronic files, or by direct access to the Client’s information systems. For greater certainty, the following shall be considered Una’s Confidential Information: (a) any information, in whatever form, disclosed by Una that relates to the Services and is non-public; and (b) the Documentation. Confidential Information may also include the information of a third party disclosed to the Disclosing Party under an obligation of confidentiality. Confidential Information, however, shall not include any information which the Receiving Party can establish: (i) was in the public domain prior to the time of disclosure to the Receiving Party by the Disclosing Party; (ii) becomes publicly known after disclosure to the Receiving Party through no action or inaction of the Receiving Party; (iii) is in the possession of the Receiving Party, without confidentiality restrictions, at the time of disclosure to the Receiving Party by the Disclosing Party as shown by the Receiving Party’s files and records immediately prior to the time of disclosure; or (iv) is disclosed pursuant to an order or requirement of a court, administrative agency, or other governmental body, provided, however, that the Receiving Party shall provide prompt notice of its obligation to so disclose to the Disclosing Party prior to disclosing the information and shall use its commercially reasonable efforts to obtain a protective order or otherwise prevent public disclosure of such information, at the Disclosing Party’s expense.

6. WARRANTIES

a. Performance. For the duration of the Service Period, Una warrants that the Services, when Used as permitted under this Agreement and in accordance with the Documentation, will operate substantially as described in the Documentation. Client will provide, on a timely and best-efforts basis, all required data access and configuration support to enable Una to successfully install, configure, and maintain the Services for Client’s benefit. Una will provide Client the Support Services as described here: https://unasoftware.com/una-support-services. Una does not warrant the Client’s Use of the Services will be error free or uninterrupted. Una will, at its own expense and as its sole obligation and Client’s exclusive remedy for any breach of this warranty, use commercially reasonable efforts to correct any reproducible error in the Services reported to Una by Client in writing during the Services Period or, if Una determines that the Services will not be able to perform substantially in accordance with the Documentation after receiving written notice of such non-performance from Client during the Services Period, Una will refund to Client all Subscription Fees that Client pre-paid and not yet incurred for the period following the date of reporting the error.

b. Authority. Una represents and warrants that it has the full power and authority to grant the rights granted by it to the Client under this Agreement.

c. DISCLAIMERS. EXCEPT FOR THE EXPRESS WARRANTIES IN THIS SECTION 6, UNA MAKES NO OTHER WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, REGARDING THE SERVICES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. CLIENT ACKNOWLEDGES THAT IT HAS RELIED ON NO WARRANTIES OTHER THAN THE EXPRESS WARRANTIES IN THIS SECTION 6. CLIENT ACKNOWLEDGES THAT THE SERVICES ARE PROVIDED WITH THE UNDERSTANDING THAT UNA IS NOT ENGAGED IN THE BUSINESS OF RENDERING LEGAL, TAX, OR OTHER PROFESSIONAL SERVICES AND THAT THE SERVICES ARE NOT INTENDED TO PROVIDE LEGAL, TAX, OR OTHER EXPERT ADVICE, OR BE A SUBSTITUTE FOR A LAWYER, ACCOUNTANT, OR OTHER PROFESSIONAL. IF LEGAL OR TAX ADVICE OR OTHER EXPERT ASSISTANCE IS NEEDED, THE SERVICES OF A COMPETENT LAWYER, ACCOUNTANT, OR OTHER PROFESSIONAL LICENSED TO PRACTICE IN THE APPLICABLE JURISDICTION SHOULD BE SOUGHT. CLIENT ACKNOWLEDGES AND AGREES THAT ALL DECISIONS MADE WITH THE ASSISTANCE OR USE OF THE SERVICES WILL BE EXCLUSIVELY THE RESPONSIBILITY OF THE CLIENT.

7. INDEMNITY

a. Una Indemnity. Subject to this Agreement, Una agrees to defend, indemnify and hold harmless Client from and against any losses, damages, expenses or costs (including but not limited to reasonable attorneys’ fees) awarded to a third party against Client by a court or tribunal of competent jurisdiction in any claims, demands, suits, or proceedings made or brought against Client by a third party alleging that the Services infringe the intellectual property rights of such third party (each an “IP Claim”). Una’s indemnification obligations are conditional on the following: (i) Client agrees to notify Una promptly in writing of all IP Claim; (ii) Client shall give Una sole control of the defense of IP Claims and any related settlement negotiations; and (iii) Client shall co-operate with IP Claims and, at Una’s request and expense, assist in such defense. If the Services become, or in Una’s opinion are likely to become, the subject of an IP Claim, Una may, at its option and expense, either: (a) procure for Client the right to continue using the Services; (b) replace or modify the Services so they becomes non-infringing; or (c) accept termination of the Services and give Client a refund for the Subscription Fees pre-paid and not incurred by Client for the period of time following such determination. Notwithstanding the foregoing, Una will have no obligations under this Section 7(a) or any other liability to Client with respect to any IP Claims based upon: (i) any Use of the Services not in accordance with this Agreement or Documentation or for purposes not intended by Una; (ii) any Use of the Services in combination with other products, software, or data not supplied by Una; (iii) any IP Claims relating to Client Data; or (iv) any modification of the Services by any person other than Una or its authorized agents or subcontractors.

b. Client Indemnity. Client shall defend, indemnify and hold Una harmless against any and all claims, actions, allegations, damages, losses, liabilities and expenses (of whatever form or nature, including, without limitation, reasonable attorneys’ fees and expenses and all costs of litigation), whether direct or indirect, that Una or any related party may sustain as a result of Client’s, its Affiliates’ and its authorized users’: (i) breach of this Agreement; (ii) gross negligence or willful misconduct; (iii) breach of a third party’s intellectual property or privacy rights; (iv) claims arising in connection with Client Data; or (v) claims arriving out of Client’s failure to provide sufficient access to its internal systems as required to enable functioning of the Services (each a “Client Claim”). As conditions for such defense and indemnification by Client, (i) Una shall notify Client promptly in writing upon becoming aware of all pending Client Claims; (ii) Una shall give Client sole control of the defense and settlement of such Client Claims; (iii) Una shall cooperate fully with Client in the defense or settlement of such Client Claims; and (iv) Una shall not settle any Client Claims without Client’s written consent, or compromise the defense of any such Client Claims or make any admissions in respect thereto.

8. LIMITATION ON LIABILITY

IN NO EVENT SHALL EITHER PARTY BE LIABLE TO THE OTHER PARTYFOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL OR INCIDENTAL DAMAGES, INCLUDING ANY LOST PROFITS, ARISING FROM OR RELATING TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS), HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL EITHER PARTY’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT OR THE SUBSCRIPTION SERVICES AND CLIENT SOFTWARE, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER LEGAL THEORY, EXCEED THE AMOUNT OF FEES ACTUALLY PAID BY AND DUE FROM CLIENT HEREUNDER. BOTH PARTIES ACKNOWLEDGE THAT THE FEES REFLECT THE ALLOCATION OF RISK SET FORTH IN THIS AGREEMENT AND THAT NEITHER PARTY WOULD ENTER INTO THIS AGREEMENT WITHOUT THESE LIMITATIONS ON LIABILITY. NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY’S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY’S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS; (III) ANY CLAIMS FOR NON-PAYMENT; OR (IV) EACH PARTY’S INDEMNIFICATION OBLIGATIONS PURSUANT TO THIS AGREEMENT.

9. TERM AND TERMINATION

a. Term. The term of this Agreement will commence on the Effective Date and will continue in full force and affect until: (a) the end of the Services Period as defined in the Order Form; or (b) terminated pursuant to Section b.

b. Termination. Each party may terminate this Agreement, effective immediately upon written notice to the other party, if: (a) the other party breaches any material term of this Agreement and does not cure the breach within thirty (30) days after receiving written notice thereof from the non-breaching party; or (b) the other party becomes insolvent, has a receiver appointed with respect to a material part of its assets, or is the subject of any bankruptcy proceeding that is not dismissed within thirty (30) days of its filing. Notwithstanding the foregoing: (i) Una may terminate this Agreement, effective immediately upon written notice to Client, if: (i) Client breaches any provision of Section 1; or (ii) Client fails to pay any amount due to Una under this Agreement within thirty (30) days after receiving written notice from Una that payment is due; (ii) Client may terminate this Agreement at any time upon providing not less than thirty (30) days prior written notice to Una, provided that all amounts due from Client to Una for the current Services Period as specified in the applicable Order Form have been paid in full; and (c) either party may terminate this Agreement, effective immediately upon written notice to the other party, if such other party breaches any provision of Section 5.

c. Effects of Termination. Upon termination of this Agreement for any reason, any amounts owed to Una under this Agreement before such termination will be immediately due and payable, all access and license rights granted in this Agreement will immediately cease to exist, and Client must promptly discontinue all Use of the Services, erase all copies of the Client Software from any Client computers, and return to Una or destroy all copies of the Una’s Confidential Information, Client Software and Documentation on tangible media in Client’s possession or control and certify in writing to Una that it has fully complied with these requirements. Una will at Client’s request, and within 90 days of the termination of this Agreement, remove and destroy any Client Data that has been uploaded via the Services. Sections 1, 2b, 2c, 3-5, 6c, 7, 8, 9c, and 10 will survive the termination of this Agreement for any reason.

10. GENERAL

a. Compliance with Laws. Client will comply with all applicable laws, including all export and import control laws and regulations, in its Use of the Services.

b. Assignment. Client may not assign any of its rights or obligations under this Agreement without the Una’s prior written consent.

c. Notices. All notices, consents, and approvals under this Agreement must be delivered in writing by personal delivery, prepaid registered mail (return receipt requested) or email to the other party at the address set forth below. Such a notice, consent or approval will be effective upon receipt, if personally delivered, three (3) business days after being mailed, if mailed by registered mail, or one (1) business day following transmission, if sent by email (provided a confirmation of receipt is obtained). Either party may change its physical or email address by giving notice of the new address to the other party in accordance with this Section.

d. Governing Law and Venue. For Clients who are based in or are residents of the United States, this Agreement shall be governed by the laws of the State of Delaware and all disputes relating to this Agreement shall be subject to resolution in the courts of the State of Delaware without reference to conflicts of law principles. For all other Clients, this Agreement shall be governed by the Province of Ontario without reference to conflicts of law principles and all disputes relating to this Agreement shall be subject to resolution in the courts of the Province of Ontario without reference to conflicts of law principles. Each party irrevocably submits to the jurisdiction and venue of any such court in any such action or proceeding.

e. Remedies. Client acknowledges that the Services contain valuable trade secrets and proprietary information of Una, that any actual or threatened breach of Section 1 or 4 will constitute immediate, irreparable harm to Una for which monetary damages would be an inadequate remedy and that injunctive relief is an appropriate remedy for such breach. Accordingly, Client agrees that Una shall be entitled to immediate and permanent injunctive relief from a court of competent jurisdiction in the event of any such breach or threatened breach by Client. The parties agree and stipulate that Una shall be entitled to such injunctive relief without posting a bond and that nothing herein shall limit Una’s right to any remedies at law.

f. Waiver. Any waiver of a provision of this Agreement must be in writing and signed by the party waiving such provision. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.

g. Severability. If any provision of this Agreement is held to be unenforceable or invalid by any court of competent jurisdiction, the remaining provisions will not be affected and will continue in full force and effect.

h. Construction. The naming of Section headings in this Agreement is for convenience of reference only and is not to be used in interpreting this Agreement. As used in this Agreement the word “including” means “including but not limited to”.

i. Force Majeure. Except for Client’s obligations to pay Una hereunder, neither party shall be liable to the other party for any failure or delay in performance caused by reasons beyond its reasonable control.

j. Entire Agreement. These Service Terms together with the applicable Order Forms and their schedule and exhibits constitute the final, complete, and exclusive statement of the terms of the agreement between the parties regarding the subject matter hereof and supersedes all prior agreements, understandings, and communications between the parties, whether written or oral. This Agreement may be amended only by a written document signed by both parties. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any Order Form, the terms of such Order Form shall prevail to the extent of the conflict.

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