YOU AGREE THAT BY USING THE SITE, ANY APPLICATIONS, AND THE SERVICES YOU ARE AT LEAST 18 YEARS OF AGE AND YOU ARE LEGALLY ABLE TO ENTER INTO A CONTRACT.
1. Agreement definitions
(b) “Subscriber” refers to the purchaser of the Divii Services provided by Divii and shall also include any present or former agent, representative, independent contractor, employee, servant, attorney and any entity or person who had authority to act on your behalf.
(c) “Confidential Information” refers to the Content (as defined below) and any information, technical data, or know-how considered proprietary or confidential by either party to this Agreement including, but not limited to, either party’s research, services, inventions, processes, specifications, concepts, techniques, documentation, source code, customer information, personally identifiable information, pricing information, procedures, financial information, and business opportunities disclosed by either party before or after the Effective Date of this Agreement, either directly or indirectly in any form whatsoever, including in writing, orally, machine-readable form or through access to either party’s premises.
(d) “Content” refers to any information you upload or post to the Divii Services and any information provided by you to Divii in connection with the Divii Services, including, without limitation, information about Subscribers or their Clients (as defined below).
(e) “Client” means an individual who has been invited to use the client-facing features of the Divii Services in a limited capacity as a client of an Authorized User.
(f) “Divii Services” refers to any software or services provided by Divii, including customer support and email communications. (i) “Public content” refers to certain content configured by Subscribers and shared or made available to the public.
(g) “Security Emergency” refers to a violation by a Subscriber of this Agreement that (a) could disrupt (i) Divii’s provision of the Divii Services; (ii) the business of other subscribers to the Divii Services; or (iii) the network or servers used to provide the Divii Services; or (b) provides unauthorized third party access to the Divii Services.
2. Limited License & Use of the Divii Services
2.1 As a Subscriber, you are granted a non-exclusive, non-transferable, limited license to access and use the Divii Services.
2.2 Divii does not review or pre-screen the Content and Divii claims no intellectual property rights with respect to the Content.
2.3 Subscribers agree not to reproduce, duplicate, copy, sell, resell or exploit access to the Divii Services, use of the Divii Services, or any portion of the Divii Services, including, but not limited to the HTML, Cascading Style Sheet (“CSS”) or any visual design elements without express written permission from Divii.
2.4 Subscribers agree not to modify, reverse engineer, adapt or otherwise tamper with the Divii Services or modify another website so as to falsely imply that it is associated with the Divii Services, Divii, or any other software or service provided by Divii.
2.5 Subscribers agree that they will not knowingly use the Divii Services in any manner which may infringe copyright or intellectual property rights or in any manner which is unlawful, offensive, threatening, libelous, defamatory, pornographic, obscene or in violation of the terms of this Agreement.
2.6 Subscribers agree that they will not knowingly use the Divii Services to upload, post, host, or transmit unsolicited bulk email “Spam”, short message service “SMS” messages, viruses, self-replicating computer programs “Worms” or any code of a destructive or malicious nature.
2.7 Except for the non-exclusive license granted pursuant to this Agreement, the Subscriber acknowledges and agrees that all ownership, license, intellectual property and other rights and interests in and to the Divii Services shall remain solely with Divii.
2.8 Subscribers who configure the Divii Services to share or make available certain Content to the public, are deemed to acknowledge and agree that everyone will have access to the Content. Divii reserves the right, at any time, in its sole discretion, to take any action deemed necessary with respect to Public Content that violates the terms of this Agreement, including, but not limited to, removal of such Public Content.
2.9 Divii reserves the right at any time, and from time to time, to modify or discontinue, temporarily or permanently, any feature associated with the Divii Services, with or without notice, except that Divii shall provide the Subscriber with 30-days notice of any modification that materially reduces the functionality of the Divii Services. Continued use of the Divii Services following any modification constitutes Subscriber’s acceptance of the modification.
2.10 Divii reserves the right to temporarily suspend access to the Divii Services for operational purposes, including, but not limited to, maintenance, repairs or installation of upgrades, and will endeavour to provide no less than two business days notice prior to any such suspension. Such notice shall be provided to you in advance by way of notification through a method deemed appropriate by Divii. Further, Divii shall endeavour to confine planned operational suspensions with a best effort to minimize disruption to the Subscriber, but reserves the ability to temporarily suspend operations without notice at any time to complete necessary repairs. In the event of a temporary suspension, Divii will use notification methods to provide updates as to the nature and duration of any temporary suspension.
2.11 Divii stores all Content on redundant storage servers. The Subscriber may elect to, at a regular interval, replicate all Content associated with the subscription to a third party storage service (“Escrow Agent”). The replicated Content (“Escrowed Data”) will be held under the terms of a separate agreement exclusively between the Subscriber and the Escrow Agent (“Escrow Agreement”). The Subscriber may also elect to replicate all Content associated with the subscription on its own storage device.
2.12 The Subscriber grants to Divii a non-exclusive, royalty-free right during the Subscriber’s use of the Divii Services, to use the Confidential Information for the sole purpose of performing Divii’ obligations under the Agreement in accordance with the terms of the Agreement. Such rights shall include permission for Divii to generate and publish aggregate, anonymized reports on system usage and Content trends and type, provided they do not conflict with Section 4.1.
2.13 Divii uses one code-base for all jurisdictions. Subscribers are required, using settings available within the Divii Services, to configure the Divii Services for their own jurisdiction and to verify that the settings meet the Subscriber’s requirements. Divii will highlight known features that may require review.
3. Access to the Divii Services
3.1 The Subscriber is required to provide their full legal name, a valid email address, and any other information reasonably requested by Divii.
3.2 As between Divii and the Subscriber, any Content uploaded or posted to the Divii Services remains the property of the Subscriber. Upon Cancellation or Termination of Service as discussed in Section 10 below, Divii shall be responsible for the return of Content directly to the Subscriber.
3.3 All access to and use of the Divii Services via mechanical, programmatic, robotic, scripted or any other automated means not provided as part of the Divii Services is strictly prohibited.
4.1 Each party agrees to treat all Confidential Information as confidential and not to use or disclose such Confidential Information except as necessary to perform its obligations under this Agreement.
4.2 Divii and any third party vendors and hosting partners it utilizes to provide the Divii Services shall hold Content in strict confidence and shall not use or disclose Content except (a) as required to perform their obligations under this Agreement; (b) in compliance with Section 7 of this Agreement, or (c) as otherwise authorized by the Subscriber in writing.
5. Security and Access
5.1 Divii is responsible for providing a secure method of authentication and accessing the Divii Services. Divii will provide mechanisms that:
(a) allow for user password management (b) transmit passwords in a secure format (c) protect passwords entered for purposes of gaining access to the Divii Services by utilizing code that follows password management best practices.
5.2 The Subscriber will be responsible for protecting the security of passwords, or any other codes associated to the Divii Services, and for the accuracy and adequacy of personal information provided to the Divii Services.
5.3 The Subscriber will implement policies and procedures to prevent unauthorized use of passwords, and will promptly notify Divii upon suspicion that a username and password has been lost, stolen, compromised, or misused.
5.4 At all times, Divii, and any third party vendors and hosting partners it utilizes to provide the Divii Services, will:
(a) use information security best practices for transmitting and storing your Content, adhering to industry standards;
(b) employ information security best practices with respect to network security techniques, including, but not limited to, firewalls, intrusion detection, and authentication protocols, vulnerability and patch management;
(c) ensure its host facilities maintain industry standards for security and privacy; and
(d) within thirty (30) days of a request by the Subscriber, provide the Subscriber with a (SOC2 or SOC3) audit report or industry standard successor report or a comparable description of its security measures in respect of the data center facilities used to host the Divii Services and the Content. In order to obtain such a report, the Subscriber must enter into an agreement with the third party provider of the report.
5.5 Divii shall report to the Subscriber, with all relevant details (except those which could prejudice the security of data uploaded by other customers), any event that Divii reasonably believes represents unauthorized access to, disclosure of, use of, or damage to Content (a “Security Breach”). Divii shall make such report within 72 hours after learning of the Security Breach.
5.6 In the event of a Security Breach, Divii shall (a) cooperate with the Subscriber to identify the cause of the breach and to identify any affected Content; (b) assist and cooperate with the Subscriber in investigating and preventing the recurrence of the Security Breach; (c) assist and cooperate with the Subscriber in any litigation or investigation against third parties that the Subscriber undertake to protect the security and integrity of Content; and (d) use commercially reasonable endeavours to mitigate any harmful effect of the Security Breach.
6. Legal Compliance
6.1 Divii maintains that its primary duty is to protect the Content to the extent the law allows. Divii reserves the right to provide the Confidential Information to third parties as required and permitted by law (such as in response to a subpoena or court order), and to cooperate with law enforcement authorities in the investigation of any criminal or civil matter.
If Divii is required by law to make any disclosure of the Confidential Information that is prohibited or otherwise constrained by this Agreement, then Divii will provide the Subscriber with prompt written notice (to the extent permitted by law) prior to such disclosure so that the Subscriber may seek a protective order or other appropriate relief. Subject to the foregoing sentence, Divii may furnish that portion (and only that portion) of the Confidential Information that it is legally compelled or otherwise legally required to disclose.
6.2 Divii accepts service of process by mail or courier at the physical address set forth below. Divii does not accept service of process via email or electronic communications. Any notices that you provide without compliance with this section shall have no legal effect. No employee or office location other than listed below is authorized to accept service of process on behalf of Divii.
Congruo Solutions Inc.
201-1842 Oak Bay Ave
7. Subscriber Notice
As per Section 6.1, Divii is contractually required to notify Subscribers of requests for their information from third parties, unless prohibited by law from doing so. Divii will provide Subscribers with prompt written notice prior to any disclosure requests so that the Subscriber may seek a protective order or other appropriate relief.
8. Managed Backup and Archiving
8.1 Divii’s managed backup services must be designed to facilitate restoration of Content to the server or device from which the Content originated in the event the primary data is lost or corrupted. Divii shall ensure recovery of lost or corrupted Content at no cost to you. Following any cancellation or termination of Service for any reason, the Subscriber shall have ninety days to retrieve any and all Content.
9. Payment, Refunds, and Subscription Changes
9.1 Subscribers with paid subscriptions will provide Divii with a valid credit card for payment of the applicable subscription fees. All subscription fees are exclusive of all federal, provincial, municipal, or other taxes which Subscribers agree to pay based on where the Subscriber is located. Invoices will include (i) subscription fees and (ii) all applicable sales taxes, as amended from time to time, for the jurisdiction in which the Subscriber is located. In the event of updated tax rates, Divii will apply the new tax rate without notice to the Subscriber. In addition to any fees, the Subscriber may still incur charges incidental to using the Divii Services, for example, charges for Internet access, data roaming, and other data transmission charges.
9.2 Subscribers with monthly paying subscriptions will be charged upon the expiration of any applicable free trial period. Subscriptions cancelled prior to the expiration of any trial period, will not be charged. Monthly Subscribers will thereafter be charged in advance each 30 days. Annual Subscribers will thereafter be charged annually on the anniversary date of the initial subscription charge. All charges are final and non-refundable, including payments made by Annual Subscribers, setup fees, and other professional services charges.
9.3 No refunds or credits will be issued for partial periods of service, upgrade/downgrade refunds, or refunds for periods unused with an active subscription.
9.4 There are no charges for cancelling a subscription and paying subscriptions cancelled prior to the end of their current billing cycle will not be charged again in the following cycle.
9.5 The amount charged on the next billing cycle will be automatically updated to reflect any changes to the subscription, including upgrades or downgrades, and including the addition or removal of discounts included for the purchase of suite services. Subscription changes, including downgrades, may result in loss of access to Content, features, or an increase or reduction in the amount of available capacity for Content provided by the Divii Services.
9.6 All prices are subject to change upon notice. Such notice may be provided by an e-mail message to the Subscriber, or in the form of an announcement on the Divii Services.
9.7 The Subscriber is responsible for paying all taxes associated with the subscription to the Divii Services. If Divii has the legal obligation to pay or collect taxes for which the Subscriber is responsible under this section, the appropriate amount shall be charged to and paid by the Subscriber, unless the Subscriber provides Divii with a valid tax exemption certificate authorized by the appropriate taxing authority.
9.8 Any and all payments by or on account of the compensation payable under this Agreement shall be made free and clear of and without deduction or withholding for any taxes. If the Subscriber is required to deduct or withhold any taxes from such payments, then the sum payable shall be increased as necessary so that, after making all required deductions or withholdings, Divii receives an amount equal to the sum it would have received had no such deduction or withholding been made.
10. Cancellation and Termination
10.1 Subscribers are responsible for canceling subscriptions. A Subscriber may cancel their subscription at any time by accessing the Divii Services. The Subscriber may be directed, within the Divii Services, to call support to complete the cancellation.
10.2 Divii in its sole discretion has the right to suspend or discontinue providing the Divii Services to any Subscriber without notice for actions that are (a) in material violation of this Agreement and (b) create a Security Emergency.
10.3 If (i) a Subscriber uses the Divii Services to materially violate this Agreement in a way that does not create a Security Emergency; (ii) Divii provides the Subscriber with commercially reasonable notice of this violation; (iii) Divii uses commercially reasonable efforts to discuss and resolve the violation with the Subscriber; and (iv) despite the foregoing, the violation is not resolved to Divii’s reasonable satisfaction within thirty (30) days of such notice, then Divii reserves the right to suspend access to the Divii Services.
10.4 As required by Section 8 above (“Managed Backup and Archiving”), upon cancellation or termination of a subscription, Content is made available to the Subscriber. Following a period of no less than ninety (90) days from the cancellation or termination of a subscription, all Content associated with such subscription will be irrevocably deleted from the Divii Services. All Escrowed Data, if any, will continue to remain available for a period of six months upon cancellation or termination of a subscription in accordance with the terms of the Escrow Agreement.
11. Limitation of Liability
11.1 Except in the case of a violation by Divii of its obligations under Section 4 above (“Confidentiality”), Section 5 above (“Security and Access”), and Section 8 above (“Managed Backup and Archiving”), and except as provided in Section 13.2 below (“Indemnification”), Divii shall not be liable and the Subscriber waives the right to claim any loss, injury, claim, liability or damage of any kind resulting in any way from the Divii Services provided to the Subscriber by Divii.
11.2 THE SUBSCRIBER AGREES THAT THE LIABILITY OF DIVII ARISING OUT OF ANY CLAIM IN ANY WAY CONNECTED WITH THE DIVII SERVICES WILL NOT EXCEED THE TOTAL AMOUNT YOU HAVE PAID FOR THE DIVII SERVICES PURSUANT TO THE AGREEMENT WITHIN THE SIX MONTH PERIOD BEFORE THE DATE THE CLAIM AROSE. THE SUBSCRIBER FURTHER AGREES THAT DIVII IS NOT AND WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER (INCLUDING WITHOUT LIMITATION, ATTORNEY FEES) RELATING TO THIS AGREEMENT. THESE DISCLAIMERS APPLY REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, WHETHER THOSE DAMAGES ARE FORESEEABLE AND WHETHER DIVII HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES. THESE DISCLAIMERS ARE NOT APPLICABLE TO THE INDEMNIFICATION OBLIGATION SET FORTH IN SECTION 13.2. EACH PROVISION OF THIS AGREEMENT THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF DAMAGES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY DIVII TO THE SUBSCRIBER AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE FROM AND INDEPENDENT OF ALL OTHER PROVISIONS OF THIS AGREEMENT.
11.3 The Subscriber will solely be responsible for any damage and/or loss of Content contained in the Subscriber’s technology which occurs as a result of the Subscriber’s electronic equipment and/or the Subscriber’s computer system.
12. Disclaimer of Warranties
12.1 DIVII HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS WITH RESPECT TO ANY SERVICES PROVIDED BY DIVII. NOTHING IN THIS SECTION 12.1 SHALL MODIFY Divii’S OBLIGATION TO INDEMNIFY THE SUBSCRIBER AS REQUIRED BY SECTION 13.2(A) OF THIS AGREEMENT (“INDEMNIFICATION”).
12.2 Divii makes no warranty that its services when provided to the Subscriber in digital or electronic format will be compatible with the Subscribers computer and/or other equipment, or that the Divii Services will be secure or error free. Nor does Divii make any warranty as to any results that may be obtained from the use of the Divii Services. Nothing in this Section 12.2 shall modify Divii’s obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”) or Divii’s obligation to indemnify you as required by Section 13.2(b) of this Agreement (“Indemnification”).
12.3 Divii hereby disclaims all warranties of any kind related to the Subscriber’s hardware or software beyond the warranties provided by the manufacturer of the Subscriber’s hardware or software.
13.1 The Subscriber hereby agrees to indemnify and hold harmless Divii from and against any claim, action, proceeding, loss, liability, judgment, obligation, penalty, damage, cost or expense, including attorneys’ fees, which arise from or relate to the following:
a. The Subscribers breach of any obligation stated in this Agreement, and
b. The Subscribers negligent acts or omissions.
Divii will provide prompt notice to the Subscriber of any indemnifiable event or loss. The Subscriber will undertake, at the Subscriber’s own cost, the defense of any claim, suit or proceeding with counsel reasonably acceptable to Divii. Divii reserves the right to participate in the defense of the claim, suit, or proceeding, at Divii’ expense, with counsel of Divii’s choosing.
13.2 Divii shall defend, indemnify and hold the Subscriber harmless against any loss, damage or costs (including reasonable attorneys’ fees) in connection with claims, demands, suits, or proceedings (“Claims”) made or brought against the Subscriber by a third party
a. alleging that the Divii Services, or use of the Divii Services as contemplated hereunder, infringes a copyright, a U.S. patent issued as of the date of final execution of this Agreement, or a trademark of a third party or involves the misappropriation of any trade secret of a third party; provided, however, that the Subscriber:
(a) promptly gives written notice of the Claim to Divii (provided, however, that the failure to so notify shall not relieve Divii of its indemnification obligations unless Divii can show that it was materially prejudiced by such delay and then only to the extent of such prejudice); (b) gives Divii sole control of the defense and settlement of the Claim (provided that Divii may not settle any Claim unless it unconditionally releases the Subscriber of all liability); and (c) provides to Divii, at Divii’s cost, all reasonable assistance. Divii shall not be required to indemnify the Subscriber in the event of: (x) modification of the Divii Services by the Subscriber in conflict with the Subscriber’s obligations or as a result of any prohibited activity as set forth herein to the extent that the infringement or misappropriation would not have occurred but for such modification; (y) use of the Divii Services in combination with any other product or service not provided by Divii to the extent that the infringement or misappropriation would not have occurred but for such use; or (z) use of the Divii Services in a manner not otherwise contemplated by this Agreement to the extent that the infringement or misappropriation would not have occurred but for such use; or
b. arising out of or related to a violation by Divii of its obligations under Section 4 above (“Confidentiality”) or Section 5 above (“Security and Access”).
14.1 Subscribers acknowledge and agree that Divii may use third party vendors and hosting partners to provide the necessary hardware, software, networking, storage, and related technology required to run the Divii Services.
14.2 the Divii Services may allow you to access or use or integrate with third party providers of products and services (“Third Party Services”). Such Third Party Services are not “Services” under this Agreement and are not subject to any terms related to Services, including related warranties, indemnities, service commitments or other obligations. The availability of any Third Party Services through the Divii Services does not imply Divii’s endorsement of or affiliation with the provider. Access to and use of any Third Party Services are subject to the separate terms and conditions required by the providers of the Third Party Services. Divii does not control the Third Party Services and will have no liability to the Subscriber in connection with any Third Party Service. Divii has no obligation to monitor or maintain any Third Party Service and may replace, disable or restrict access to any Third Party Service or cancel related integrations at any time, without notice. BY USING OR ENABLING ANY THIRD PARTY SERVICE, THE SUBSCRIBER EXPRESSLY ACKNOWLEDGES THAT ANY LIABILITY AND REMEDIES RELATED TO A THIRD PARTY SERVICE IS WHOLLY GOVERNED BY THE APPLICABLE THIRD PARTY AGREEMENT AND DIVII DISCLAIMS ALL LIABILITY RELATED TO SUCH THIRD PARTY SERVICE.
14.3 The Subscriber acknowledges the risk that information and the Content stored and transmitted electronically through the Divii Services may be intercepted by third parties. The Subscriber agrees to accept that risk and will not hold Divii liable for any loss, damage, or injury resulting from the interception of information. The Content is stored securely and encrypted. Only Divii, with strict business reasons, may access and transfer the Content and only to provide the Subscriber with the Divii Services. Divii will make reasonable efforts to provide notice to the Subscriber prior to such access and transfer. Divii’ actions will comply with its obligations under Sections 4 and 5 of this Agreement.
14.4 The failure of either party to enforce any provision hereof shall not constitute or be construed as a waiver of such provision or of the right to enforce it at a later time.
14.5 This Agreement constitutes the entire agreement between the Subscriber and Divii and governs the Subscriber’s use of the Divii Services, superseding any prior agreements between the Subscriber and Divii (including, but not limited to, any prior versions of this agreement).
14.6 Divii reserves the right to amend this Agreement. In the event of material changes to the Agreement, Divii will notify Subscribers, by email, or by other reasonable means of these changes prior to their enactment. Continued use of the Divii Services by the Subscriber after reasonable notice will be considered acceptance of any new terms.
14.7 Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (which consent shall not be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety without consent of the other party in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets provided the assignee has agreed to be bound by all of the terms of this Agreement. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this Section shall be void and of no effect.
14.8 Governing Law and Venue. This Agreement and your relationship with Divii shall be governed exclusively by, and will be enforced, construed, and interpreted exclusively in accordance with, the laws applicable in the province of British Columbia, Canada and shall be considered to have been made and accepted in British Columbia, Canada, without regard to its conflict of law provisions. All disputes under this Agreement will be resolved by the courts of British Columbia in Vancouver, and Subscribers consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. In any action or proceeding to enforce rights under this Agreement, the prevailing party shall be entitled to recover costs and legal fees.