NANOS DATA PORTAL and TIME MAP™ SERVICE SUBSCRIPTION AGREEMENT
PLEASE READ THE FOLLOWING TERMS OF SERVICE CAREFULLY. BY CLICKING ON “I AGREE”, THE SUBSCRIBER ACCEPTS THESE TERMS OF SERVICE:
This NANOS DATA PORTAL AND Time Map software-as-a-service subscription agreement (the “Subscription”) constitutes a contract between NANOS RESEARCH CORPORATION, a corporation incorporated and registered in Ontario (Canada) (“Nanos”) and the individual, corporation, association, sole proprietorship or other entity having subscribed to this Subscription (the “Subscriber”). This Subscription is effective on the date the Subscriber has clicked on “I agree” (the “Effective Date”).
The Subscriber acknowledges that he or she has read the terms of this Subscription, understands them and agrees to be bound by them, and that the person who accepted them on behalf of the Subscriber (as the case may be) has been authorized to do so. The person entering into this Subscription on behalf of the Subscriber represents that he or she has the authority to bind the Subscriber to these terms.
Subscription fees are for Nanos Sentiment Modelling and not for publicly available Elections Canada information.
(Capitalized terms used in this Subscription in addition to the foregoing are defined in Section 10 [Definitions], shall be interpreted in accordance with these definitions and related terms shall be interpreted accordingly.)
1. TIME MAP, CONSULTATION OF DATA, ACCESS TO NANOS DATA PORTAL AND AUTHORIZED PURPOSES (ALSO SOMETIMES REFERRED TO COLLECTIVELY AS THE “SERVICE”)
1.1. Using Time Map and NANOS DATA PORTAL. During the Term, the Subscriber may access and make use of Time Map data and Nanos Data Portal in accordance with the Subscription (including the terms of any outstanding Order), and Nanos authorizes the Subscriber, and Subscriber undertakes, to access and make use of Time Map and Nanos Data Portal to consult the Data only for the purpose of obtaining information for its own personal use (the “Authorized Purposes”) with no right to share such Data or use it in any other manner without the prior written consent of Nanos. Nanos reserves all other rights.
1.2. Other purposes. Upon (i) any unauthorized use or sharing of Data or (i) any fact brought to Nanos’ attention that leads to the inference that Data or a means of accessing or using Data is sold, communicated or otherwise made available to or shared with a third party, Nanos shall have the right to terminate the Subscription upon notice to Subscriber with immediate effect (without prior notice of default).
1.3. Time Map AND NANOS DATA PORTAL Revisions. Some of the features and functionality of the Service may depend on what is available from providers that supply Data and Data-related services. Nanos may occasionally, by choice or necessity, modify the features and functionality of the Service, including by removing them.
1.4. Documentation. The Subscriber may Utilize the Documentation, but only as necessary to support access to and use of Time Map Service by Users.
1.5. Technical Support. During the Term, Nanos provides no technical support or assistance to the Subscriber except via a self-service web-based help portal with Documentation, generally available at all times.
2. SUBSCRIPTION FEES
2.1. Payment. Payment is due in advance. The Subscriber shall pay Nanos the subscription fees in advance through the Nanos portal. If payment of the annual subscription fee is not paid Nanos reserves the right to terminate the Subscribers access to the platform without notice.
2.2. No Refund. Under no circumstances shall Nanos be required to refund subscription fees paid by the Subscriber.
3. CONFIDENTIAL INFORMATION
3.1. Obligation of confidentiality. The Subscriber shall treat all Data as Confidential Information disclosed by Nanos to Subscriber, even if such Data are already accessible or known to the public or become known to the public via other means or without violating the Subscription.
3.2. Non-disclosure. The Subscriber may not disclose Confidential Information obtained from Nanos or Data to a third party, except to the extent that such disclosure:
3.2.1. is expressly permitted herein; or
3.2.2. is required by law.
3.3. Prohibition. The Subscriber shall not disclose Confidential Information or Data to any person, except as permitted by paragraphs 3.4 [Authorized Disclosure] and 3.5 [Required Disclosure].
3.4. Authorized disclosure. The Subscriber may provide Confidential Information or Data to one of its Representatives:
3.4.1. if, and to the extent that, Nanos consents in writing to such communication; or
184.108.40.206. has a need to know the Confidential Information or Data in the pursuit of an Authorized Purpose;
220.127.116.11. has been informed of the confidentiality obligations of this Subscription; and
18.104.22.168. agrees in writing to respect and be bound by the provisions of this Subscription or is bound by equivalent confidentiality obligations to the Subscriber with respect to the Confidential Information or Data.
3.5. Required Disclosure
3.5.1. Notice to Nanos. The Subscriber may disclose Confidential Information or Data if required to do so by law, but only if the Subscriber:
22.214.171.124. promptly gives Nanos notice to give it a reasonable opportunity to seek a protective order or other appropriate remedy or to waive the Subscriber’s compliance with its confidentiality obligations; and
126.96.36.199. cooperate with Nanos to obtain a protective order or other appropriate measure.
3.5.2. Limited communication. If Nanos is unable to obtain a protective order, other appropriate relief or fails to comply with the legal process requiring disclosure, the Subscriber may only disclose the requested Confidential Information or Data to the extent necessary to satisfy the request.
3.6. Unauthorized disclosure
3.6.1. Notice. The Subscriber shall immediately notify Nanos in writing of any unauthorized disclosure of Confidential Information or Data upon discovery of the loss, possession, use or unauthorized knowledge of such Confidential Information or Data.
3.6.2. Cooperation. The Subscriber shall cooperate with Nanos in any reasonable manner to assist Nanos in regaining possession or control of the Confidential Information or Data and preventing its unauthorized access or disclosure.
3.6.3. Act, omission or fault of others. The Subscriber is liable to Nanos for any damage caused to it by the communication or consultation of Confidential Information or Data resulting from an act, omission or fault of any person to whom it has communicated Confidential Information or Data and which would constitute a prohibited communication or consultation to such person if it were a party to the Subscription as a receiving party to such Confidential Information or Data.
3.7. Source code. The Subscriber acknowledges that the source code of any Nanos computer program is a Trade Secret of Nanos.
4. PROHIBITED USE AND RESTRICTIONS
4.1. Prohibited Use. Neither the Subscriber nor anyone accessing Time Map or Nanos Data Portal through the Subscriber is authorized to make use of it:
4.1.1. as a service bureau or on a timeshare basis or in any other way allowing third parties to use Time Map or the Nanos Data Portal;
4.1.2. provide passwords or other Time Map or the Nanos Data Portal login information to a third party;
4.1.3. share features, functionalities, graphics, interfaces or content of Time Map or the Nanos Data Portal with a third party;
4.1.4. to create a competing product or service, or to develop a product or service that reproduces Time Map’s or Nanos Data Portal features, functionalities, graphics, interfaces or literal or non-literal parts;
4.1.5. in violation of the rights of others or a law, regulation or decision of a government authority;
4.1.6. to attempt to gain unauthorized access to or disrupt access to services, devices, Data, accounts or networks;
4.1.7. to send spam or distribute malicious programs; or
4.1.8. in a way that may affect Time Map or the Nanos Data Portal or disrupt its use by other subscribers.
In the event that Nanos suspects any violation of this Article 4.1, including by a User, Nanos may, in addition to other remedies, suspend Subscriber’s access to Time Map or the Nanos Data Portal without notice. Nanos will notify the Subscriber prior to any suspension of Time Map or the Nanos Data Portal, unless Nanos believes that an immediate suspension is required in order to protect the service infrastructure, data integrity and confidentiality.
4.3. Compliance with Laws, Rules and Undertakings. In using Time Map or the Nanos Data Portal, the Subscriber undertakes to comply with (i) all applicable laws and regulations, including but not limited to laws governing the protection of personal information and privacy, and (ii) any rules and obligations to which it is subject with respect to entities that are using Time Map-related or Nanos Data Portal related services or Data.
5.1. Unauthorized Access. The Subscriber must take reasonable security measures, including but not limited to administrative and technical measures, to protect and prevent unauthorized access to and use of Time Map, the Nanos Data Portal and Data, including protecting passwords and other login information. The Subscriber must notify Nanos immediately of any known or suspected unauthorized access to or use of Nanos Data Portal, Time Map, any Data or any Breach and must use best efforts to stop such Breach.
5.2. Standard of care. With respect to the Data, the Subscriber must exercise at least the same degree of care as it exercises with its own Confidential Information, but in no event less than reasonable diligence.
5.3. Collaboration. The Subscriber shall cooperate with Nanos and shall take such reasonable commercial measures as Nanos may prescribe to assist in the investigation, mitigation and correction of any Breach.
6. STORAGE AND DELETION OF DATA
6.1. Storage. The Subscriber shall only retain copies of Data for as long as necessary for the fulfilment of the Authorized Purposes. The Subscriber undertakes to delete copy of Data no longer required for the Authorized Purposes. At the time of deletion of the copy of Data in his possession or custody, the Subscriber must ensure that unauthorized persons are prevented from accessing it.
6.2. Guidelines and Procedures. The Subscriber shall develop guidelines and procedures for the deletion of any copy of Data in Subscriber’s possession.
6.3. Deletion. Subject to paragraphs 6.3 and 6.4, the Subscriber shall promptly and in any event within 90 days following the termination of the Subscription or the date of termination of any of the Subscriber’s services involving Data consultation, delete and have deleted all copies of such copy of Data.
6.4. Deletion and certification. Nanos may unilaterally require, at its sole discretion, that the Subscriber:
6.4.1. destroy and cause to be destroyed any copy of Data processed by any Subscriber’s Representative; and
6.4.2. provide Nanos with a certificate signed by the Subscriber confirming compliance with the obligation to destroy any copy of Data under this article.
7. INTELLECTUAL PROPERTY AND FEEDBACK
7.1. Intellectual Property Rights to Time Map and the Nanos Data Portal. Nanos retains all its rights, title and interest in the Nanos Data Portal, Time Map, its Compilations of Data in any software used to provide Time Map, the Nanos Data Portal and in all intellectual property rights related thereto. The Subscription does not grant the Subscriber any licence or intellectual property right to Time Map, the Nanos Data Portal or any of its components. The Subscriber acknowledges that Time Map, the Nanos Data Portal and their respective components are protected by copyright and other laws.
7.2. Compilation. If Subscriber creates a Compilation containing Data, Subscriber acknowledges that such Compilation may reproduce or consist of all or a substantial part of one or more Compilations in respect of which Nanos has the exclusive right to perform or authorize acts that under the Canadian Copyright Act only the copyright owner has the right to perform or authorize.
7.3. Feedback. Nanos is free to use, benefit, disclose, publish, keep secret or otherwise exploit any comments, suggestions or other ideas to improve or modify in any way any of Nanos’ products or services, without compensation or attribution to the Subscriber or User providing such feedback.
7.4. Licence. Nanos grants to the Subscriber by the Subscription a limited, non-exclusive, non-transferable and revocable licence to Utilize the Data and Compilations for which Nanos is the copyright owner, strictly for the Authorized Purposes.
7.5. No Other Licences and no Assignments. The parties acknowledge that the Subscription does not constitute any licence (express or implied) other than that in Article 7.4, nor an assignment by Nanos to the Subscriber of any right, title or interest in Nanos’ intellectual property existing on the Effective Date.
8. RESPONSIBILITY, LIMITATION OF LIABILITY AND WARRANTY DISCLAIMERS
8.1. Responsibility of Subscriber
8.1.1. Users and Access to Time Map and the Nanos Data Portal. The Subscriber is responsible for any access to and use of Time Map and/or the Nanos Data Portal from the Subscriber’s account, whether authorized or not, including access to and use of Time Map or the Nanos Data Portal by Users, including the unauthorized conduct of a User and any conduct of a User that violates Subscription requirements applicable to the Subscriber.
8.1.2. Policies and Practices. The Subscriber shall implement policies and practices to ensure compliance with Subscriber’s obligations under the Subscription, including
188.8.131.52. the implementation of procedures to protect access to and use of the Data;
184.108.40.206. training of staff and provision of information to staff regarding Subscriber’s policies and practices; and
220.127.116.11. the drafting of explanatory documents concerning its policies and procedures.
8.2. Warranty Disclaimers. Nanos makes no representation or warranty regarding Time Map, the Nanos Data Portal, the Data or any other information disclosed to or to which Subscriber may have access including with respect to its accuracy or completeness or otherwise. To the extent permitted by law, Nanos excludes from the Subscription any and all contractual warranty and legal warranty. The Subscriber accepts Time Map, the Nanos Data Portal and the Data and all related information “as is” and as available, with no representation or warranty of any kind, express or implied, including without limitation implied warranties of merchantability, fitness for a particular purpose, or non-infringement of intellectual property rights, or any implied warranty arising from a statute, course of dealing, course of performance, use of trade or otherwise. Without limiting the generality of the foregoing, the Subscriber acknowledges and accepts that (i) Nanos has no obligation to indemnify or defend Subscriber or Users against claims of any nature including but not limited to claims of infringement of intellectual property; (ii) Nanos does not represent or warrant that Time Map or the Nanos Data Portal will perform without interruption or error; and (iii) Nanos does not represent or warrant that Time Map or the Nanos Data Portal is secure from hacking or other unauthorized intrusion or that Data will remain private or secure.
8.3. Limitation of Liability. Nanos’ liability under the Subscription shall never exceed the fees paid by the Subscriber in the 12 months preceding the date on which the claim arises. The existence of more than one claim will not increase or extend this limit.
9. DURATION AND END OF THE SUBSCRIPTION
9.1. Initial Period. This Subscription shall be effective as of the Effective Date for the initial term specified in the first Order (the “Initial Term”).
9.2. Renewal Term. After the Initial Term, this Subscription will automatically be renewed for additional successive periods equivalent to the initial term (the
“Renewal Terms”), except in the event of termination by one of the parties upon notice to the other party at least 30 days before the end of a Term. “Term” means the Initial Term and any Renewal Term. Upon renewal of the Subscription, Subscriber may be required to sign a new agreement, a supplemental agreement or an amendment to this agreement.
9.3.1. Termination on Notice. Either party may terminate this Subscription for any reason by giving the other party 90 days’ notice.
9.3.2. Termination for Default. Nanos may terminate the Subscription with immediate effect by notifying the other party of the termination, if the Subscriber or any User fails in its duty to honour the undertakings it has entered into by the Subscription.
9.3.3. Effects of Termination. In the event of termination of the Subscription, the Subscriber must cease all access to and use of Time Map and the Nanos Data Portal and delete or return all Confidential Information and all Documentation in its possession or control.
9.4. Survival of Provisions
9.4.1. General Survival. Articles 3 [Confidential Information], 7 [Intellectual Property and Feedback], 8.2 [Limitation of Liability], 8.3 [Warranty Exclusions] and 11.6 [Applicable Law and Dispute Resolution] and any obligation of the Subscriber to pay any costs incurred prior to termination shall survive the termination or expiration of the Subscription.
9.4.2. Trade Secrets. In the case of Confidential Information that is a Trade Secret, the Subscriber’s obligations under the Subscription shall survive termination and shall continue as long as such Confidential Information remains a Trade Secret.
9.4.3. Confidential Information other than Trade Secrets. In the case of Confidential Information that is not a Trade Secret, the Subscriber’s obligations under the Subscription shall survive termination and shall continue for the maximum period permitted by applicable law, or in perpetuity if no such maximum period exists.
The following terms and expressions beginning with a capital letter will have the corresponding meanings below when used in this Subscription.
10.1. “Breach” means any breach of a security measure consisting of (i) an unauthorized disclosure of Data or (ii) a loss of Data, or (iii) unauthorized access to it, as a result of a breach of the Subscriber’s security measures required by the Subscription or as a result of such measures not having been put in place.
10.2. “Compilation” means, within the meaning of the Canadian Copyright Act, a work resulting from the selection or arrangement of all or part of the Data.
10.3. “Confidential Information” means any information (written or oral, whether or not marked as confidential) that is not available to the public and that, if disclosed, could result in loss or harm to a party or could give the person to whom it is disclosed an advantage.
10.4. “Data” means information and representations of information (including Confidential Information) that Nanos makes available via Time Map or the Nanos Data Portal, encoded in a format that allows such information to be viewed by computers and relating to the features and functionality of Time Map or the Nanos Data Portal.
10.5. “Documentation” means the current set of Nanos documents provided online or in any material form to Users describing the features, operation and use of Time Map or the Nanos Data Portal.
10.6. “Order” means an order transmitted by purchase order to access and use Time Map or the Nanos Data Portal sent to Nanos by the Subscriber using Nanos’ purchase order processing system.
10.7. “Representative(s)” means, for any person, the directors, officers, shareholders, owners, partners, employees, legal advisors, professional advisors, professional advisors, agents, agents and other representatives having the power to represent that person in the performance of a legal act with a third party.
10.8. “Time Map and Nanos Data Portal” means Nanos’ hosted software Data modelling and mapping service and data services to which the Subscriber subscribes through the Subscription, marketed under the trademark Time Map™ and providing the Subscriber with an interactive spatial forecaster that integrates Canadian national federal election data, polling, Nanos political sentiment Data, interactive maps and other data which is compiled and made available to paid subscribers.
10.9. “Trade Secret” means Confidential Information that is (i) used or capable of being used in an industry or trade; (ii) not generally known in that industry or trade; (iii) of economic value because it is not generally known; and (iv) subject to reasonable measures in the circumstances to protect its confidentiality.
10.10. “Utilize”, in respect of a work protected by copyright, means to do anything that by the Canadian Copyright Act the owner of the copyright has the sole right to do, other than the right to authorize anything.
10.11. “User” means any individual who uses Time Map as the Subscriber or on behalf of the Subscriber or through Subscriber’s account(s), user name(s) or password(s), whether authorized or not.
11.1. Entire Agreement. This Subscription constitutes the entire agreement of the parties and replaces all prior or concurrent writings, negotiations and discussions with respect to its subject matter.
11.2. Amendment. Nanos may change the terms of this Subscription from time to time by posting an amended version on its website and sending written notice thereof to the Subscriber. Such an amendment shall be deemed accepted and shall take effect 30 days after such notice (the “Proposed Amendment Date”), unless the Subscriber notifies Nanos in writing of the rejection of the amendment. In the event of such a refusal, the version of the Subscription prior to such amendment will continue to apply, and the amended version will come into effect at the beginning of the Subscriber’s next Renewal Term following the proposed Change Date. The continued use of Time Map or the Nanos Data Portal by the Subscriber after the effective date of a change will confirm the Subscriber’s consent to the change. This Subscription may not be modified in any other way, except by written agreement of an authorized representative of each party.
11.3. Assignments. Nanos may assign the Subscription, by giving notice of such assignment to the Subscriber. The Subscriber may not assign its Subscription or its rights or obligations under the Subscription without Nanos’ written consent, unless it is in connection with the sale, transfer or other disposition of all or substantially all of its business or assets and only if the assignee would consequently assume in writing all of the Subscriber’s obligations.
11.4. No subordination. There is no subordination relationship between Nanos and the Subscriber with respect to the performance of the Subscription. Neither party is the agent or principal of the other.
11.5. Applicable Law and Dispute Resolution
11.5.1. Applicable Law. This Subscription shall be governed by the laws of the province of Ontario and the laws of Canada applicable therein, without regard to the principles of conflict of law.
11.5.2. Mediation. Before being the subject of a motion to institute proceedings, any dispute relating to the Subscription (with the exception of a dispute that may be the subject of a request submitted under the rules of procedure applicable to the recovery of small claims) must be submitted to mediation with the National Mediation Rules of ADR Institute of Canada, Inc. (“ADRIC”) and under the regime provided for in Rule 24.1 of the Rules of Civil Procedure in Ontario, unless the mediation (i) has not commenced on the initiative of a party within 10 days of the expiry of the time period specified in a notice from one party to the other to remedy a breach that is the subject of such notice or (ii) has not resulted in a settlement within 20 days after the commencement of the mediation.
11.5.3. Arbitration. Any dispute that is not settled by mediation (with the exception of a dispute that may be the subject of a request made under the rules of procedure applicable to the recovery of small claims) shall be submitted to arbitration and settled under the ADRIC Arbitration Rules and in accordance with the regime set out in Arbitration Act, 1991, SO 1991, c 17 in Ontario. There will be no appeal from the decision of the arbitral tribunal on questions of fact, law, or mixed fact and law. This arbitration agreement constitutes a separate contract from the Subscription which survives its termination, if applicable. Mediation and arbitration will be held in the City of Ottawa in the province of Ontario and will be conducted in English.
11.5.4. Judicial Court. Notwithstanding the foregoing, a party may at any time apply to a court of justice in the Province of Ontario for injunctions, safeguard orders or other interim or interlocutory measures, without the need to provide security. The parties agree, for any such claim or legal proceeding relating to the Subscription, to choose the judicial district of Ottawa, province of Ontario, Canada, as the appropriate place for the hearing of such claims or legal proceedings to the exclusion of any other judicial district that may have jurisdiction over such dispute in accordance with the provisions of the law.
11.6. Notice. Nanos may send Subscription notices to the Subscriber from the Time Map interface through messages, dialogues and modal or pop-up windows (pop-up messages) or to the Subscriber’s email contact information provided by the Subscriber with its most recent Order. The Subscriber may send notices under the Nanos Subscription to the email address email@example.com. Notices sent under this article shall be deemed to have been received 48 hours after they are sent.
11.7. Language. The parties hereto confirm that it is their wish that this Subscription be drawn up in English only. Les parties aux présentes confirment leur volonté que ce contrat soit rédigé en anglais seulement.