Services Agreement

Provisioning of the Barley Solution. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement:

Free Trial. If Barley agrees to offer a free trial of the Barley Solution to the Customer, then:

Barley hereby grants to the Customer, during the Free Trial Term, a non-exclusive, revocable, non-transferable, non-sublicensable limited right to access and use the Barley Solution. The right granted in this Section 1 (a) (i) (A) is solely for Customer’s internal use to evaluate the Barley Solution. The Customer understands and acknowledges that at the Free Trial Term ends of the earlier of: (i) the expiry of the Free Trial Term stipulated by Barley; or (ii) upon termination of the free trial by Barley; and  

Barley may terminate the Free Trial Term for any free trial of the Barley Solution at any time in Barley’s sole discretion and may accept or decline any request for a free trial of the Barley Solution in Barley’s sole discretion.  ANY CUSTOMER DATA THAT CUSTOMER ENTERS INTO THE FREE TRIAL OF THE BARLEY SOLUTION AND ANY CONFIGURATION YOU MAKE WITHIN THE FREE TRIAL OF THE BARLEY SOLUTION WILL BE PERMANENTLY LOST UNLESS AN INITIAL SUBSCRIPTION TERM COMMENCES FOR A PAID SUBSCRIPTION TO THE BARLEY SOLUTION. NOTWITHSTANDING THE “WARRANTY AND DISCLAIMER” SECTION AND “BARLEY INDEMNITY” SECTION BELOW, ACCESS TO THE FREE TRIAL OF THE BARLEY SOLUTION DURING THE FREE TRIAL TERM IS ON AN “AS-IS” BASIS WITHOUT ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF ANY KIND AND BARLEY SHALL HAVE NO INDEMNIFICATION OBLIGATIONS NOR LIABILITY OF ANY TYPE WITH RESPECT TO THE FREE TRIAL UNLESS SUCH EXCLUSION OF LIABILITY IS NOT ENFORCEABLE UNDER APPLICABLE LAW IN WHICH CASE BARLEY’S LIABILITY WITH RESPECT TO THE FREE TRIAL SHALL NOT EXCEED $100 USD. WITHOUT LIMITING THE FOREGOING, BARLEY AND ITS AFFILIATES AND ITS LICENSORS DO NOT REPRESENT OR WARRANT TO CUSTOMER THAT: (A) CUSTOMER’S USE OF THE FREE TRIAL WILL MEET CUSTOMER’S REQUIREMENTS, (B) CUSTOMER’S USE OF THE FREE TRIAL WILL BE UNINTERRUPTED, TIMELY, SECURE OR FREE FROM ERROR, AND (C) USAGE DATA PROVIDED THROUGH THE FREE TRIAL WILL BE ACCURATE. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THE “LIMITATION OF LIABILITY” SECTION BELOW, CUSTOMER SHALL BE FULLY LIABLE UNDER THIS AGREEMENT TO BARLEY AND ITS AFFILIATES FOR ANY DAMAGES ARISING OUT OF CUSTOMER’S USE OF THE FREE TRIAL, ANY BREACH BY CUSTOMER OF THIS AGREEMENT AND ANY OF CUSTOMER’S INDEMNIFICATION OBLIGATIONS HEREUNDER. Additional terms and conditions applicable to the free trial of the Barley Solution may appear on the applicable registration page. Any such additional terms and conditions are incorporated into this Agreement by reference; and 

Subscription. Barley hereby grants to Customer, during the Subscription Term, a non-exclusive, revocable, non-transferable (except as provided in Section 12 (b.)), non-sublicensable limited right to use the Barley Solution through the Subscription provided under the applicable Order Form.

Restrictions on Use. Customer will not itself, and will not permit others to:

sub-license, sell, rent, lend, lease or distribute the Barley Solution or any Intellectual Property Rights therein, or otherwise make the Barley Solution available to others other than Permitted Users;

use the Barley Solution to permit timesharing, service bureau use or commercially exploit the Barley Solution;

use or access the Barley Solution:

in violation of any Applicable Law;

in a manner that threatens the security or functionality of the Barley Solution; or

for any purpose or in any manner not expressly permitted in this Agreement;

use the Services to create, collect, transmit, store, use or process any Customer Data:

that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;

that Customer does not have the lawful right to create, collect, transmit, store, use or process; or

that infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);

Modify the Barley Solution;

reverse engineer, decompile or disassemble the Barley Solution;

remove or obscure any proprietary notices or labels on the Barley Solution, including brand, copyright, trademark and patent or patent pending notices;

access or use the Barley Solution for the purpose of building a similar or competitive product or service;

perform any vulnerability, penetration or similar testing of the Barley Solution; or

use the Services for any purpose or in any manner not expressly permitted in this Agreement.

Permitted Purpose. Customers may access and use the Barley Solution solely for the Purpose. Customers may permit its Permitted Users to access and use the Barley Solution.

Suspension of Access; Scheduled Downtime; Modifications. Barley may, from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:

suspend Customer’s access to or use of the Services or any component thereof:

if Customer or any Permitted User violates any provision of this Agreement;

for scheduled maintenance;

due to a Force Majeure;

to address any emergency security concerns;

if required to do so by a regulatory body or as a result of a change in Applicable Law; or

for any other reason as provided in this Agreement.

Barley will use reasonable endeavors to give Customer reasonable advance notice of any limitation or suspension so that Customer can plan around it or address the issue that has prompted Barley to take such action. There may be some situations, such as security emergencies, where it is not practicable for Barley to give such advance notice. Barley will use commercially reasonable efforts to narrow the scope and duration of the limitation or suspension as is needed to resolve the issue that prompted such action.    

Modify the Services provided that Barley will provide Customer with prior written notice if Barley makes a change to the Services resulting in a material decrease in core functionality used by Barley’s general customer base. In such an event, the Parties agree to work together to minimize the impact of such change to Customer.

Subcontracting. Barley may use subcontractors (including subprocessors) to assist with the provision of the Services. The delegating or subcontracting of all or any part of Barley’s obligations under this Agreement to any subcontractor will not relieve Barley from any obligation or liability under this Agreement.

Downloadable Software. Use of the Barley Solution may require or include use of downloadable proprietary email software applications (each a “Software”) to be run directly on Customer’s systems (“Customer Systems”). As a result, Software, including such software, may automatically download and install updates and upgrades from time to time from Barley. These updates are designed to improve, enhance and further develop the Barley Solution and may take the form of bug fixes, enhanced functions, new software modules, and completely new versions. Customer consents to the installation of Software, including updates and upgrades (and authorizes Barley to deliver these to Customer) as part of Customer’s use of the Barley Solution. Customer acknowledges that Software causes Customer Systems to communicate with Barley for the purposes described above. Customer, at its sole expense, agrees to provide compatible Customer Systems for the activation of Software and is responsible for upgrading and configuring Customer Systems to remain compatible with any minimum system requirements as required by Barley, during the Term. Customer is required to accept all patches, bug fixes and updates made by or on behalf of Barley to the Services. Subject to the terms and conditions of this Agreement, Barley grants to Customer a revocable, non-exclusive, non-transferrable, non sublicensable, limited license to use and run the Software solely for the purpose of facilitating access to certain functionalities of the Barley Solution, during the Term.

Regulatory Compliance. Notwithstanding anything to the contrary in this Agreement, Customer acknowledges that, although the Barley Solution may be used to administer compliance: (i) the Barley Solution do not provide legal advice or other legal guidance on which Customer can or should rely; and (ii) it is Customer’s responsibility to verify the Applicable Laws and regulations and licensing requirements with which it is required to comply, including the specific laws, regulations and requirements that relate to data storage in, and use of, the Barley Solution, and determine the specific actions to be taken by Customer and implemented in the Barley Solution to comply with such laws and regulations.

Professional Services. Barley will use commercially reasonable efforts to perform the Professional Services if set out in an applicable Order Form.

In order for Customer to access and use the Barley Solution, Barley will issue one or more administrator accounts (the “Administrator Accounts”) to Customer that provides Customer with the capability to create user accounts (each, a “Customer User Account”) for each Permitted User that Customer wishes to have access to and use of the Barley Solution.

The Customer is responsible for identifying and authenticating all Permitted Users. The Customer will ensure that Permitted Users only use the Barley Solution through the Customer User Account. Customer will not allow any Permitted User to share the Customer User Account with any other person. Customer will promptly notify Barley of any actual or suspected unauthorized use of the Barley Solution. Barley reserves the right to suspend, deactivate, or replace the Customer User Account if it determines that the Customer User Account may have been used for an unauthorized purpose.

Customer shall ensure that all Permitted Users comply with this Agreement and that none of the Permitted Users bring or maintain any Action against Barley, its shareholders, employees, officers, directors, partners, affiliates, agents, contractors, successors, and assigns and those of its affiliates in respect of any matter related to or in connection with the subject matter of this Agreement. Customer shall be liable for any breach by a Permitted User of this Agreement.

Customer Ownership. Customer retains all ownership and Intellectual Property Rights in and to Customer Data. Customer grants to Barley, a nonexclusive, worldwide, irrevocable, royalty-free, transferable, sublicensable, fully paid-up license to access, collect, use, host, process, store, disclose, transfer, transmit, copy, Modify and display Customer Data to: (a.) provide the Services; (b.) improve the Services and Barley’s other offerings; and (c.) collect, use, disclose, create or generate aggregated, de-identified data for its own purposes, whether or not aggregated with data of other users or customers (such information, the “Aggregated Data”), provided that such Aggregate Data does is not at reasonably foreseeable risk of being capable of identifying an individual.

Barley Ownership. Barley or its licensors retain all ownership and Intellectual Property Rights in and to:

the Services (including reports, data, assessments, analyses or compilations of Customer Data, collected by, derived from, created by or returned by the Barley Solution, including any derivative works thereof);

anything developed or delivered by or on behalf of Barley under this Agreement including Barley Metadata (defined below);

any Aggregated Data;

all other Barley’s Confidential Information, including but not limited to, any reports generated from the Barley Solution and Documentation;

any Modifications to the foregoing (i), (ii), (iii) and (iv), (collectively “Barley Property”);

All rights not expressly granted by Barley to Customer under this Agreement are reserved.

Barley Metadata. Barley or its licensors retain all rights, title, and interest including all Intellectual Property Rights in and to the metadata that is generated by or resulting from the processing of the Customer Data and that results from the ordinary course of the operation of the Barley Solution (“Barley Metadata”). Barley’s Confidential Information includes Barley Metadata.

Feedback. Customer grants to Barley and it’s affiliates a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into the Barley Solution, any suggestion, enhancement request, recommendation, correction or other feedback provided by Customer or Permitted Users relating to the operation of Services or any of Barley’s affiliates’ services (“Feedback”). Nothing in this Agreement will restrict our right to use, profit from, disclose, publish or otherwise exploit any Feedback, without compensation to the Customer or Permitted Users and without any obligation to the Customer or any Permitted User. Barley is not obligated to use any Feedback.

License to Documentation. Subject to the terms and conditions of this Agreement, Barley hereby grants to Customer a revocable, non-exclusive, non transferable, non-sub-licensable (other than to Permitted Users as provided herein), limited license during the Subscription Term to use the reports and Documentation solely in connection with Customer’s receipt of the Barley Solution.

Customer Responsibility. Customer has provided all necessary notices, obtained all necessary consents, and otherwise have and will continue to have all necessary legal authority to permit Barley to process Personal Information about Customer and its Permitted Users collected, used, disclosed, and accessed by Customer on the Barley Solution. Without limiting the foregoing, Customer is responsible for, and will obtain, all consents required under Applicable Laws including, without limitation, the requirements of the Personal Information Protection and Electronic Documents Act (“Privacy Laws”) for Barley to store, transmit, and otherwise process or handle the Personal Information in the Customer Data in order for Barley to provide the Services to Customer in accordance with this Agreement.

Security. Subject to Section 4 (b.) and Customer’s representation, warranties and covenants to Barley in Section 7 (b.) (Customer Representation Warranties and Covenants), Barley will process Customer Data in accordance with this Section 4 (c.). Customer shall have sole responsibility for the accuracy, quality, and legality of Customer Data processed under this Agreement, and the means by which Customer acquired such Customer Data. In the course of processing Customer Data on behalf of Customer, Barley shall:

only process Customer Data for the purposes of providing the Services in accordance with the Agreement and as otherwise instructed by Customer in writing from time to time, and not process any Customer Data in any other manner without the express prior written authorization of Customer unless required to do so by Applicable Laws;

notify Customer (unless prohibited by Applicable Laws) in writing of any (a.) enquiry received from individuals relating to the individual’s right to access, modify or correct Customer Data, (b.) complaint or correspondence received by Barley relating to the processing of Customer Data, and (c.) order, demand, warrant or any other document purporting to compel the production of any Customer Data, and provide reasonable assistance at Customer’s cost to facilitate Customer’s compliance with Customer’s obligations under privacy laws with respect to such enquiry, complaint or demand;

implement reasonable physical, technical, and administrative measures in an effort to safeguard Customer Data against loss, theft, damage or unauthorized or unlawful access or processing; and

notify Customer (unless prohibited by Applicable Laws), without undue delay (and in any event within 48 hours) upon Barley becoming aware of any actual theft, loss or unauthorized access, use or disclosure of Customer Data being processed by Barley on behalf of Customer (“Security Incident”), and reasonably cooperate with Customer, at Customer’s cost, in notifying individuals affected by a Security Incident and other persons in accordance with privacy laws applicable to Barley.

Fees. Customer will pay to Barley the fees described in an Order Form (“Fees”). All monetary amounts in this Agreement are denominated in the currency stated on the Order Form. Fee payments by Customer must be received by Barley in the same currency as such fees were billed. Payment obligations are non-cancelable and Fees paid are non-refundable, except as set forth herein.

Changes to the Fees. Barley reserves the right to change the Fees and institute new charges for any Renewal Term upon providing not less than 45 days prior written notice to Customer prior to the commencement of each Renewal Term, provided that Barley will not increase the Fees by more than the then-current list prices at which Barley generally charges for the Services to its customers.

Purchase Orders. In the event that Customer requires a purchase order number issued prior to payment of any invoices issued pursuant to the applicable Order Form, then such purchase order number must be provided to Barley prior to the activation of the Barley Solution. Customer’s execution and return of the applicable Order Form to Barley without designating a purchase order number is deemed an acknowledgment that no purchase order is required for payment of invoices hereunder.

Invoicing. Barley will prepare and send to the Customer, at the then-current contact information on file with Barley, an invoice for any Fees that have become due and payable. You will pay all invoiced amounts in accordance with the terms set out in the applicable Order Form.

Disputed Invoices or Charges. If the Customer believes Barley has charged or invoiced the Customer incorrectly, the Customer must contact Barley no later than 30 days after having been charged by Barley or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, the Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.

Late Payment. The Customer may not withhold or setoff any amounts due under this Agreement. Barley reserves the right, after providing notice to Customer of overdue payment, to suspend the Customer’s access to the Barley Solution and any delivery of Professional Services until all due and undisputed amounts are paid in full.

Taxes. The Fees set out in this Agreement do not include applicable federal, state, provincial, municipal, local, foreign taxes, including sales, use, gross receipts, value-added, goods and services, harmonized, use, personal property or other similar transaction taxes (collectively “Taxes”). Customer will be responsible for and pay all applicable Taxes, duties, tariffs, assessments, export and import fees or similar charges (including interest and penalties imposed thereon) on the transactions contemplated in connection with this Agreement, other than Taxes based on the net income or profits of Barley. If Barley has the legal obligation to pay or collect Taxes for which Customer is responsible under this Section, the appropriate amount shall be invoiced to and paid by Customer, unless Customer provides Barley with a valid tax exemption certificate authorized by the appropriate taxing authority.

Suspension. Any suspension of the Services by Barley pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

Credit Card Payments. By providing a credit card to Barley for pre-authorized payments, Customer authorizes Barley to charge the Customer credit card for all outstanding Fees, Taxes, charges and outstanding account balances due and this constitutes Barley’s good and sufficient authority for so doing. If Customer’s pre-authorized payment method fails, Barley will provide notification to you of payment failure. Customer shall: (i) keep the billing, credit card and payment information Customer provides to Barley or its suppliers or payment processors, including name, credit card number and expiry date, mailing address, e-mail address and telephone number, accurate and up to date; (ii) promptly advise Barley if Customer’s credit card information changes due to loss, theft, cancellation or otherwise; and (iii) be liable for Customer failure to pay any Fees billed to Customer by Barley caused by Customer failure to provide Barley with up to date billing information. To offset its additional processing costs, Barley may charge Customer for administrative charges as set from time to time for administrative or account activities including: collection efforts due to non-payment or having a balance over your credit limit; returned or rejected payments; or changes in personal identifier information. All administrative charges charged to Customer will be indicated on Customer’s invoice or receipt and Customer shall pay all such charges.

Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” of the Discloser means any and all information of the Discloser or any of its licensors that has or will come into the possession or knowledge of the Recipient in connection with or as a result of entering into this Agreement, including information concerning the Discloser’s past, present or future customers, suppliers, technology or business, and where the Discloser is Customer includes Customer Data; provided that the Discloser’s Confidential Information does not include, except with respect to Personal Information: (i) information already known or independently developed by the Recipient without access to the Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of the Recipient; or (iii) information received by the Recipient from a third party who was free to disclose it without confidentiality obligations.

Confidentiality Covenants. The Recipient hereby agrees that during the Term and at all times thereafter it will not, except to exercise its license rights or perform its obligations under this Agreement: 

disclose Confidential Information of the Discloser to any person, except to:

in the case of Customer to its own Permitted Users having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Disclosure may approve in writings; or

in the case of Barley to Barley’s employees, consultants, agents or affiliates, having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement; or to such other recipients as the Discloser may approve in writing.

alter or remove from any Confidential Information of the Discloser any proprietary legend.

Each Party will take industry standard precautions to safeguard the other Party’s Confidential Information, which will in any event be at least as stringent as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.

Exceptions to Confidentiality. Notwithstanding Section 6(b.), the Recipient may disclose the Discloser’s Confidential Information: (i) to the extent that such disclosure is required by Applicable Law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, the Recipient promptly notifies the Discloser in writing of such required disclosure and cooperates with the Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors, if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Barley: (1) to potential assignees, acquirers or successors of Barley if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Barley; and (2) to its affiliates, permitted third-party sub-processors, consultants and any other subcontractors in connection with the provision of the Services.

Return of Confidential Information. Upon the termination or expiration of this Agreement and all Order Forms under this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Data which is addressed at Section 10(c.) below) of the other Party in its possession or control within a reasonable amount of time, in accordance with the Recipient’s data destruction practices. Notwithstanding the foregoing, Barley may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Agreement.

Mutual Representations, Covenants and Warranties. Each Party represents, warrants, and covenants that:

it has full power and all necessary rights and authority to enter into this Agreement and to perform its obligations hereunder;

it will carry out its obligations under this Agreement in compliance with Applicable Laws applicable to it; and

entering into this Agreement will not cause it to be in breach of any agreement with any other third party.

Customer’s Responsibilities and Customer’s Representation, Warranties and Covenants.

Unless otherwise agreed to in an Order Form, Customer is solely responsible for: (1) configuring all equipment, software, and systems used with the Services; and (2) ensuring that Permitted Users use the Services in compliance with this Agreement; and

Customer represents and warrants to, and covenants with, Barley that

its use of the Services will at all times comply with all Applicable Laws applicable to Customer and Permitted Users and will not cause Barley to be non-compliant with any Applicable Laws;  and

Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each Permitted User), obtained all applicable consents, and permissions and otherwise has all authority, in each case as required by and in compliance with Applicable Laws, including applicable Privacy Laws, to enable Barley to provide the Services, including without limitation with respect to the collection, storage, access, use, disclosure, processing, transmission and transfer of Personal Information, including by or to Barley and to or from all applicable third parties.

GENERAL DISCLAIMER. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, BARLEY DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SERVICES (OR ANY PART THEREOF) AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY BARLEY TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BARLEY HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, BARLEY EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SERVICES OR ANY SERVICES (OR ANY PART THEREOF), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

Barley’s Indemnity.

Barley will indemnify, defend, and hold harmless the Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any claim, action, demand, inquiry, audit, proceeding, or investigation of any nature, civil, criminal, administrative, regulatory, or other, whether at law, in equity or otherwise (collectively, an “Action”) by a third party (other than an Affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the Barley Solution infringes any third-party Intellectual Property Right in Canada and the United States. The foregoing obligation does not apply to any Action or Losses arising out of or relating to any: (A) incorporation of any Barley Solution into, or any combination, operation, or use of any Barley Solution with, any products or services not provided or authorized by Barley, unless such infringement would also have resulted solely from the use of the Barley Solution without their incorporation in, or combination, operation or use, with such other products or services; (B) modification of any Barley Solution other than by Barley or with Barley’s express written approval; (C) unauthorized use of the Barley Solution by Customer or any Permitted User; or (D) Customer’s indemnities in Section 8(b).  This Section 8 (a.) (i) states Barley’s sole liability to, and the Customer’s exclusive remedy against, Barley for any third party claim described in this Section.

If the Barley Solution are, or in Barley’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if the Customer’s use of any Barley Solution is enjoined or threatened to be enjoined, Barley may, at its option and sole cost and expense:

obtain the right for the Customer to continue to use the affected Barley Solution materially as contemplated by this Agreement;

modify or replace Barley Solution, in whole or in part, to seek to make the Barley Solution (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Barley Solution under this Agreement; or

if Barley determines that neither of the foregoing two options are reasonably available, by written notice to Customer, Barley may, in its sole discretion, terminate this Agreement and require Customer (and its Permitted Users) to immediately cease all use of the applicable Barley Solution or part or feature thereof provided that Barley will refund to Customer prepaid unused Fees attributable to any applicable Barley Solution that was to be provided after the effective date of termination.

THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.

Customer Indemnity. The Customer will defend, indemnify and hold harmless Barley, and its officers, directors, employees and agents (each, a “Barley Indemnitee”) from and against any and all Losses incurred by a Barley Indemnitee arising out of or relating to any Action by a third party (other than an Affiliate of a Barley Indemnitee) that arise from or relate to: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations, warranties or covenants under this Agreement; or (iii) unauthorized use of the Services by the Customer or any Permitted User. Customer will fully cooperate with Barley in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Barley.

Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Action for which such Party believes it is entitled to be indemnified pursuant to this Section 8. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Action (although the Indemnitor shall not settle any claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 8(c.) will not relieve the Indemnitor of its indemnity obligations under this Section 8 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.

AMOUNT. SUBJECT TO SECTION 9 (d.) (EXCEPTIONS) AND EXCEPT AS SET OUT IN SECTION 9 (c.) (DATA BREACH CAP), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE BARLEY SOLUTION IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

TYPE. SUBJECT TO SECTION 9 (d.) (EXCEPTIONS), TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (A) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (B) LOST OR LOSS OF (I) SAVINGS, (II) PROFIT, (III) DATA, (IV) USE, OR (V) GOODWILL; (C) BUSINESS INTERRUPTION; OR (D) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (E) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THE PRODUCTS, SERVICES, OR THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

DATA BREACH CAP. NOTWITHSTANDING SECTION 9 (a.) (AMOUNT), BARLEY’S TOTAL AGGREGATE LIABILITY FOR BARLEY’S BREACH OF SECTION 4 (PRIVACY AND SECURITY) OR SECTION 6 (CONFIDENTIAL INFORMATION), RESULTING IN A SECURITY INCIDENT WILL NOT EXCEED THE AGGREGATE AMOUNT OF TWO TIMES (2X) THE FEES PAID BY CUSTOMER FOR THE BARLEY SOLUTION IN THE 12 MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT.

EXCEPTIONS. NOTHING IN THIS AGREEMENT EXCLUDES OR LIMITS: (A) CUSTOMER LIABILITY OR OBLIGATIONS UNDER SECTION 8 (b.) (CUSTOMER INDEMNITIES); (B) BARLEY’S LIABILITY OR OBLIGATIONS UNDER SECTION 8 (a.) (i) (BARLEY INDEMNITIES); (C) EITHER PARTY’S OBLIGATIONS UNDER SECTION 6 (CONFIDENTIAL INFORMATION) EXCEPT FOR BREACH OF BARLEY’S OBLIGATIONS UNDER SECTION 6 WHICH RESULTS IN A SECURITY INCIDENT, WHICH IS SUBJECT TO THE LIMITS IN SECTION 9 (c.) ABOVE; (D) LOSSES ARISING OUT OF OR RELATING TO CUSTOMER’S BREACH OF ITS OBLIGATIONS UNDER SECTIONS 1 (b.) (RESTRICTIONS ON USE) OR 5 (FEES AND PAYMENT); OR (E) EITHER PARTY’S GROSS NEGLIGENCE, WILLFUL MISCONDUCT, OR FRAUD.

Term. The Subscription to use and access the Barley Solution is granted to Customer for an initial subscription period of one (1) year or such other period as set out in the Order Form (“Initial Subscription Term”). Unless Customer’s Subscription is terminated in accordance with this Agreement, Customer’s Subscription shall automatically be renewed for subsequent one (1) year period unless otherwise set out in the Order Form (each "Renewal Term"), unless and until: (i) the Agreement is terminated or expires pursuant to Section 10(b.) or (ii) either Party notifies the other Party of its intention not to renew the Agreement, which notice must be provided no less than 30 days prior to the date of expiry of the Initial Term or any then-current Renewal Term. The Initial Subscription Term and all Renewal Terms are collectively referred to as the "Subscription Term". The Initial Subscription Term shall commence automatically, upon the start date for such Subscription as set out in an applicable Order Form.

Termination. 

Termination by Either Party. Either Party may terminate this Agreement or any Order Form, for cause by giving to the other Party written notice of termination upon the occurrence of any of the following events: (1) the other Party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 5 (Fees and Payment)) and fails to cure such breach or default within thirty (30) days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (2) immediately if the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (3) immediately if any proceedings are instituted by or against the other Party under any insolvency laws or for reorganization, receivership, or dissolution.

Termination by Barley. If this Agreement or Order Form is terminated by Barley in accordance with Section 10 (b.), all outstanding Fees for the unexpired portions of the then-current Term will become immediately due and payable, irrespective of the payment frequency or other payment terms set out in the Order Form. If Customer pre-paid the Fees for a portion of the Term, such pre-paid Fees will not be refunded by Barley. 

Termination by Customer. Customer can terminate this Agreement for convenience at any time. If Customer terminates this Agreement for convenience, all outstanding Fees for the unexpired portions of the then-current Initial Term or Renewal Term will become immediately due and payable, irrespective of the payment frequency or other payment terms set out in the Order Form. If Customer has pre-paid the Fees for a portion of the Term, such pre-paid Fees will not be repayable by Barley. If Customer terminates this Agreement or Order Form, in accordance with Section 10 (b.) (i) (1), because of Barley’s uncured material breach, Barley will provide Customer with a pro-rata refund of unused pre-paid Fees attributable to the period after the effective date of termination.

Effect of Termination. Upon expiration or termination of this Agreement:

Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using Barley Solution and return any Barley Property in its possession and certify in writing to Barley that the Barley Property has been returned.

No expiration, cessation of use of the Services by Customer or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration, cessation of use or termination or entitle Customer to any refund. All Fees due and payable and any amounts due to Barley are immediately due and are to be immediately paid by Customer to Barley. 

Upon written request by Customer made within 30 days of the effective date of termination or expiry of the Agreement, Barley will provide Customer with a copy of Customer Data (subject to any legal requirement to maintain such Customer Data) in a commonly accepted portable format as determined by Barley in its sole discretion (e.g. XLSX, DOCX, CSV, or any other open standards format). After such 30 day period, Barley will have no obligation to maintain or provide any Customer Data, and as provided in the Documentation will thereafter delete or destroy all copies of Customer Data in its systems or otherwise in its possession or control, unless legally prohibited. In the event that Applicable Law, including without limitation Privacy Laws, does not permit Barley to comply with the delivery or destruction of the Customer Data, Barley warrants that it shall ensure the safeguarding of the Customer Data in accordance with Applicable Law applicable to Barley. 

Termination of an Order Form does not terminate this Agreement. However, all Order Forms will terminate upon the termination of this Agreement. 

Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 3 (Ownership; Reservation of Rights), Section 4 (Privacy and Security), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty and Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 10(d.) (Survival), and Section 12 (General Provisions).

Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Barley, to the following Barley’s address and contact details stated in Order Form or otherwise emailing Barley at legal@barley.io; and (ii) if to Customer, to the current mailing or email address that Barley has on file with respect to Customer. Barley may change its contact information by posting the new contact information on the Website or by giving notice thereof to Customer. Customer is solely responsible for keeping Customer’s contact information on file with Barley current at all times during the Term.

Assignment. Neither Party may assign any of its rights or obligations under this Agreement, whether by operation of law or otherwise without the prior written consent (which consent will not be unreasonably withheld or delayed). Notwithstanding the foregoing, either Party may assign this Agreement without consent of the other Party in connection with a merger, amalgamation, or other corporate reorganization or a sale of substantially all of its assets relating to that portion of its business that delivers or receives the Services, so long as: (a.) the assignee is not a competitor of Barley; (b.) the assignee is bound by the terms of this Agreement; and (c.) all undisputed past due fees or any refunds or credits owed are paid in full (a “Permitted Assignment”). As used in subsection (a.), a competitor for Barley is any entity that may be reasonably construed as offering competitive functionality or services to those offered by Barley. Any attempt by a Party to assign its rights or obligations under this Agreement, other than as permitted by this Section, will be void and of no effect. Subject to the foregoing, this Agreement inures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

Governing Law and Attornment. This Agreement and any action related thereto will be governed by and construed in accordance with the laws of the Ontario and the federal laws of Canada applicable therein, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario, Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. The U.N. Convention on Contracts for the International Sale of Goods will not apply to this Agreement. This choice of jurisdiction does not prevent Barley from seeking injunctive relief with respect to a violation of Intellectual Property Rights or confidentiality obligations in any appropriate jurisdiction.

Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Barley Solution. Barley makes no representation or warranty that the Barley Solution may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.

Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion” mean the right of a Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party.

Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites (“Force Majeure”). For clarity, a Force Majeure event shall not excuse the Customer from its failure to pay Fees or Customer’s indemnities under this Agreement. This Section does not apply to any of Customer’s obligations under Sections 1 (b.), 5, 6, 7 or 8.

Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.

Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.

Independent Contractors. Barley’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.

Entire Agreement. This Agreement (including any documents incorporated herein by reference to a URL or otherwise, and any Order Form), constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether oral or written. Any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services; (ii) do not override or form a part of this Agreement (including without limitation any Order Form); and (iii) are void.

Customer Lists. Barley may identify the Customer by name and logo as a Barley customer on Barley’s website and on other promotional materials.

English Language. 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.

“Administrator Account” has the meaning set out in Section 2(a.)

“Agreement” has the meaning in the preamble

“Aggregated Data” has the meaning in Section 3(a.)(iii)

“Amendment” has the meaning set out in Section 12(k.)

“Applicable Law” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any governmental or regulatory authority

“Barley Property” has the meaning set out in Section 3(b.)

“Barley Solution” means: (i) the services through which Barley hosts and makes available Barley or its licensors’ compensation management software as a service solution as described in an Order Form; and (ii) any component or Modification of the services referred to in (i). The term “Barley Solution” includes the Software, Support Services but does not include Professional Services

“Confidential Information” has the meaning set out in Section 6(a.)

“Customer Data” means any data, information, content, records, and files that Customer or any Permitted User loads or enters into, transmits to, or makes available to the Barley Solution, including but not limited to Personal Information, excluding Aggregated Data and any other Barley Property

“Customer User Account” has the meaning set out in Section 2(a.)

“Disclosure” has the meaning set out in Section 6(a.)

"Documentation" means Barley’s help center, user guides, manuals or other similar documentation relating to the Barley Solution provided by Barley to Customer either electronically or in hard copy form

“Feedback” has the meaning set out in Section 3(d.)

“Fees” has the meaning set out in Section 5(a.)

“Free Trial Term” means the free trial term agreed to by Barley. The Free Trial Term commences on the date confirmed by Barley

“Force Majeure” has the meaning set out in Section 12(f.)

“Initial Subscription Term” has the meaning set out in Section 10(a.)

“Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world

“Loss” or “Losses” means any and all losses, damages, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers

“Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning

“Order Form” means an order form that references this Agreement and that is executed by both Parties or otherwise accepted by Customer

“Party” has the meaning set out in the preamble

“Permitted User” means: (i) individual employees of Customer; (ii) individual contractors under a staff augmentation arrangement with Customer; (iii) potential employees of, that Customer wishes to have access to and use of the applicable Barley Solution

“Personal Information” means information about an identifiable individual provided by Customer to Barley under this Agreement

“Professional Services” means the onboarding, training and other professional services described in an Order Form. The term “Professional Services” does not include Barley Solution

“Privacy Policy” has the meaning set out in Section 4

“Purpose” means the access and use of the Barley Solution by the Customer and Permitted Users for the sole purpose of Customer’s internal business use. For clarity, nothing contained in this Agreement grants Customer a right to resell, distribute, sublicense the Subscription to any third-party

“Recipient” has the meaning set out in Section 6(a.)

“Renewal Term” has the meaning set out in Section 10(a.)

“Services” means the Barley Solution and the Professional Services, collectively, and any part thereof

“Support Services” has the meaning set out in Section 11

“Subscription” means the limited right to use and access the Barley Solution in accordance with this Agreement including the Order Form agreed between the Parties

“Subscription Term” has the meaning set out in Section 10(a.)

“Term” means the Free Trial Term and Subscription Term