PLEASE READ THIS AGREEMENT CAREFULLY WHICH CREATES A LEGAL AGREEMENT BETWEEN YOU (THE “END USER” OR “YOU”) AND HOCKEYSTICK.CO INC. ("HOCKEYSTICK"). THESE TERMS GOVERN YOUR USE OF THE SERVICES, SOFTWARE AND WEBSITE PROVIDED BY HOCKEYSTICK (COLLECTIVELY, THE “SERVICES”). IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT DO NOT USE THE SERVICES. IF YOU ACCESS OR USE THE SERVICES, YOU WILL BE ACCEPTING THIS AGREEMENT, AND YOU WILL HAVE ACCEPTED AND AGREED TO THESE TERMS AND CONDITIONS. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
Fund managers, organizations or other third parties that wish to use the Services and/or make the Services available for use by their portfolio companies, must separately enter into a written agreement with us (in either case, a “Master Services Agreement”). That Master Services Agreement permits those portfolio companies to access and use the Services through their end users. If you have been invited by a fund manager or another organization, you acknowledge and agree that certain additional terms apply to your use of the Services and such terms will be notified to you by the organization that enrolled you or your company to use the Services.
If you sign up for or use the Services as an Account Representative (as that term is defined below) on behalf of a Licensee, you represent and warrant to Hockeystick that you have the authority to bind the Licensee and enter into this Agreement on behalf of the Licensee.
We may, from time to time, modify this Agreement. Please check this page periodically for updates. If you do not agree to, or cannot comply with, the modified Agreement, you must stop using the Services. The updated Agreement will take effect upon its posting and will apply on a go-forward basis and your continued use of the Services after any such update constitutes your binding acceptance of such changes.
In this Agreement the following capitalized terms have the following meanings:
“Account Representative” means the authorized representative of a Licensee company.
“Confidential Information” means any and all information disclosed by either party to the other which is marked "confidential" or "proprietary", or which the recipient knows or has reason to know is regarded by the disclosing party as such. "Confidential Information" does not include any information that the receiving party can demonstrate by its written records: (a) was known to it prior to its disclosure hereunder by the disclosing party; (b) is or becomes known through no wrongful act of the receiving party; (c) has been rightfully received from a third party authorized to make such a disclosure; or (d) is independently developed by the receiving party; (e) has been approved for release by the disclosing party's prior written authorization.
“Effective Date” means the date on which End User is first entitled to use the Hockeystick Service through agreeing to these terms through the Hockeystick website and provided that Licensee has already executed an Order Form permitting such use by Licensee and its users.
“End User” means an individual entitled by a Licensee to use the Hockeystick Service.
“End User Data” all electronic data and information, or any derivatives thereof, uploaded, submitted or otherwise transmitted to or through the through Hockeystick Service by End User.
“Fees” means the license fees payable in respect of the Licensed Software and Service.
“Hockeystick Service” means HockeyStick’s web-based software application made available through the Hockeystick platform located at www.hockeystick.co which is capable of communicating information from companies to their shareholders and/or other users and generating data and information with respect to the same.
“Licensed Data” means data licensed by an organization or other third-party to Hockeystick for inclusion in the Hockeystick Pro database or other Hockeystick database.
“Licensee” means the business entity to which a license is granted by Hockeystick for the use by employees and personnel within the business entity of the Hockeystick Service.
“Term” has the meaning given in Section 8.
“Usage Data” means data collected and generated by Hockeystick Service related to use of Hockeystick Service.
2.1 License Terms. Subject to the terms and conditions of this Agreement and payment of the applicable Fees, Hockeystick grants to End User a non-exclusive, non-transferable license to use the Hockeystick Service as part of Hockeystick Service during the Term. The Hockeystick Service may only be accessed and used by authorized End Users to process End User Data and separate licenses must be purchased for other entities who wish to use the Hockeystick Service. Hockeystick reserves the right to monitor the use of the Hockeystick Service and to charge for additional licenses if use is made of the Hockeystick Service in breach of the license restrictions in this section 2.1. The Hockeystick Service is being licensed, not sold. End User acknowledges and agrees that title in and rights to the Hockeystick Service remains exclusively with Hockeystick and its licensors. End User's rights to the Hockeystick Service are strictly limited to those granted in this Agreement.
2.2 End User Responsibilities. End User is responsible for any and all End User Data and for compliance with this Agreement including obtaining all necessary licenses, permissions and consents to enable all material comprising End User Data can be processed and transmitted via Hockeystick Service. End User shall: (i) have sole responsibility for the accuracy, quality, integrity, legality, reliability, and appropriateness of the End User Data; (ii) safeguard any login details provided for accessing Hockeystick Service and prevent unauthorized access to or use of Hockeystick Service, and shall notify Hockeystick promptly upon becoming aware of any such unauthorized access or use; and (iii) comply with all applicable local, state, provincial, federal and foreign laws in using Hockeystick Service. The Account Representative is responsible for Licensee’s use of the Service.
2.3 Service Use Guidelines. End User shall use Hockeystick Service solely as contemplated in this Agreement and shall not license, sublicense, sell, resell, lease, transfer, assign, distribute, time share or otherwise make Hockeystick Service available to any third party. End User shall not: (a) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Hockeystick Service or Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary; (b) circumvent any user limits or other use restrictions that are built into Hockeystick Service; (c) remove any proprietary notices, labels, or marks from Hockeystick Service or Hockeystick Service; or (d) access Hockeystick Service in order to (i) build a competitive product or service; or (ii) copy any ideas, features, functions or graphics of Hockeystick Service.
2.4 Hockeystick Matchmaking Service. Information provided through the Hockeystick Service does not constitute (i) an offer, invitation or recommendation to purchase or sell, nor a solicitation of an offer to buy, any securities to any person in any jurisdiction or to dispose or acquire assets, (ii) an opinion, invitation or recommendation to enter into a transaction, including, without limitation, any public or private offering of securities, nor (iii) any form of legal, financial, investment or tax advice, opinion or recommendation. The information provided on the Hockeystick Service is not intended to form the basis of any future or present contract or arrangement or a fiduciary relationship with, or fiduciary duty to, the recipient.
2.5 Sponsors. If End User receives its right to access the Hockeystick Service through a Sponsor, End User acknowledges and agrees that End User's access to the Hockeystick Service will be royalty-free for the period of time that the Sponsor is responsible for payment of the Fees, Furthermore, Sponsors will have some administrator rights and access to End User Data unless End User opts to upgrade End User's account and pay the required Fees directly to Hockeystick. In the event that the Fees for Hockeystick Service which were paid by a Sponsor end for whatever reason, Hockeystick will notify End User and End User will have the option to upgrade to a paid user account with Hockeystick for continued use of the Hockeystick Service. If End User does not elect to continue under a paid license with Hockeystick, End User's right to access and use the Hockeystick Service will terminate.
2.6 Support. Any support issues with Hockeystick Service which End User cannot resolve should be notified to Hockeystick. Hockeystick will use commercially reasonable efforts to make Hockeystick Service available during the Term except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond Hockeystick’s reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems, or Internet service provider failures or delays.
2.7 Account Ownership. The Account Representative for each Licensee shall have the authority to make certain decisions on behalf of the Licensee, which may include updating company records, accepting investment offers and applying for accelerator programs. In the event of a dispute regarding the Account Representative, Hockeystick reserves the right to verify email addresses and domains and/or request documentation to determine or confirm account ownership, including but not limited to, a scanned copy of a business license, government issued photo ID, the last four digits of the credit card on file, individual’s status as an employee of an entity, etc. If Hockeystick is unable to reasonably determine the rightful Account Representative, without prejudice to our other rights and remedies, Hockeystick may suspend or disable an account until resolution has been determined between the disputing parties.
3.1 Contributing Licensed Data. Organizations may opt to contribute Licensed Data to Hockeystick, provided that any party contributing Licensed Data represents and warrants that the provision of Licensed Data to Hockeystick does not breach any third-party agreement, any intellectual property right (at law or in equity) or any law to which it is subject. By providing Licensed Data to Hockeystick, Hockeystick is granted a perpetual, irrevocable, sub-licenseable license to use, modify, display, copy, adapt, translate, distribute and create derivative works from such Licensed Data for any purpose, including but not limited to combining the Licensed Data with Hockeystick data in Hockeystick Pro and Licensed Data of third parties.
3.2 Use of Licensed Data. If a Licensee subscribes to Hockeystick Pro or otherwise receives access to the Hockeystick Service through a Sponsor, then subject to the terms and conditions of this Agreement and payment of any applicable Fees, Hockeystick grants to Licensee and its End Users a non-exclusive, non-transferable license to use the Licensed Data as part of Hockeystick Pro for its own purposes.
3.3 Disclaimer. The Licensed Data has been obtained from sources that are believed to be reliable but neither Hockeystick nor any third party providing such data guarantee the accuracy, completeness or timeliness of the Licensed Data. It the Licensee’s or End User’s sole responsibility to verify thr accuracy of any Licensed Data.
3.4 Restrictions. In using the Licensed Data, Licensee shall not: (a) sell, rent, lease, loan, transfer, sublicense, distibute or otherwise make available or permit access to any Licensed Data to any third party; (b) modify, decompile, disassemble, decrypt or reverse engineer any portion of the Licensed Data; or (c) use or attempt to use any deep-link, scraper, robot, bot, spider, data mining, computer code or any other device, program, tool, algorithm, process or methodology or process having similar functionality, to access, acquire, copy or monitor any portion of the Licensed Data.
4.1 Invoicing and Late Payments. All amounts owing hereunder shall be paid in Canadian Dollars. Hockeystick shall invoice End User (or the Sponsor if applicable) for all fees due under this Agreement (including all fees due pursuant to the exhibits). Invoiced amounts shall be due and payable in full within such thirty (30) days after the date of the invoice. Any amounts not paid within such thirty-day period shall be subject to interest at the lesser of 1.5% per month or the maximum allowed by applicable law, which interest shall be immediately due and payable. All payments to Hockeystick are non-refundable, unless otherwise provided under this Agreement.
4.2 Taxes. All license fees, fees for services and other payments to Hockeystick are exclusive of any and all taxes, duties or levies assessed by applicable governmental authorities. All such taxes, duties and levies (exclusive of any taxes based upon Hockeystick’s net income) shall be assumed by and paid for by End User, regardless of whether included in any invoice sent to End User at any time by Hockeystick.
4.3 Suspension of Service. If End User's account is thirty (30) days or more overdue, in addition to any of its other rights or remedies, Hockeystick reserves the right to suspend Hockeystick Service provided to End User, until such amounts are paid in full or terminate Hockeystick Service and this Agreement.
TO THE GREATEST EXTENT PERMITTED BY LAW, THE HOCKEYSTICK SERVICE, SERVICE AND SUPPORT PROVIDED BY HOCKEYSTICK HEREUNDER ARE PROVIDED ON AN "AS IS" BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THEM OR ANY OTHER PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY HOCKEYSTICK. HOCKEYSTICK DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HOCKEYSTICK DOES NOT REPRESENT OR WARRANT THAT THE HOCKEYSTICK SERVICE OR SERVICE SHALL MEET ANY OR ALL OF END USER'S PARTICULAR REQUIREMENTS, THAT THE HOCKEYSTICK SERVICE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ALL ERRORS OR DEFECTS IN THE HOCKEYSTICK SERVICE CAN BE FOUND OR CORRECTED.
6.1 Limitation of Liability. HOCKEYSTICK SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF HOCKEYSTICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HOCKEYSTICK'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE FEES PAID BY END USER FOR THE SOFTWARE IN THE SIX MONTHS LEADING UP TO AN EVEN THAT GAVE RISE TO LIABILITY.
6.2 Indemnity. You agree to indemnify and hold Hockeystick and (as applicable) our affiliates, officers, directors, agents, and employees, harmless from any loss, damages, claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, your violation of any law or the rights of a third party, or resulting from your actions as an Account Representative.
7.1 Reservation of Rights. Except for the rights and licenses granted in this Agreement, End User acknowledges and agrees that Hockeystick owns and shall retain all right, title and interest (including without limitation all patent rights, copyrights, trademark rights, trade secret rights and all other intellectual property rights therein) in and to the Hockeystick Service, including any and all modifications, derivatives, improvements and enhancements to the same, and Service and grants End User no further licenses of any kind hereunder, whether by implication, estoppel or otherwise.
7.2 License Data. As between Hockeystick and End User, End User shall exclusively own all End User Data. End User hereby grants Hockeystick a non-exclusive, perpetual, royalty-free, worldwide license to copy, translate, adapt, distribute or otherwise use or exploit the End User Data and Usage Data, in any medium, mode or format, to provide the Hockeystick Service, create aggregate statistics, improve the Hockeystick Service, provide relevant content to End Users, and to publish benchmark statistics and research, provided that such End User Data is aggregated and anonymized and does not publicly identify End User or any individual. Any End User Data consisting of personal data, as such term is defined under the EU General Data Protection Regulation 2016/679 (“Personal Data” and “GDPR” respectively) to which the GDPR applies, and the processing thereof, shall be governed under the terms and conditions set forth in the Hockeystick’s Data Processing Agreement (“DPA”). A current version of the DPA is available at https://about.hockeystick.co/data-processing-agreement. Without limiting the obligations of End User elsewhere in this Agreement or the DPA, unless otherwise expressly agreed in writing between End User and Hockeystick, End User will not provide or make available to Hockeystick: (i) “special categories of personal data” under the GDPR; or (ii) any data that is otherwise subject to heightened restrictions relating to the transmission or processing of data for the jurisdictions in which End User or Hockeystick operate.
7.3 Feedback. End User agrees that Hockeystick may freely use any suggestions, feedback or ideas End User may provide to Hockeystick ("Feedback"). By providing any feedback to Hockeystick, End User grants Hockeystick a perpetual, worldwide, fully transferable, sub-licensable, non-revocable, royalty-free, license to use and exploit the Feedback. Without limiting the foregoing, Hockeystick may use End User's Feedback to modify and improve Hockeystick Service or any other current and future services/products, services advertising or marketing materials.
Neither party will use any Confidential Information of the disclosing party except as necessary to exercise its rights or perform its obligations hereunder or as expressly authorized in writing by the other party. Each party shall use the same degree of care to protect the disclosing party's Confidential Information as it uses to protect its own confidential information of like nature, but in no circumstances less than reasonable care. Neither party shall disclose the other party's Confidential Information to any person or entity other than its officers, employees, consultants and legal advisors who need access to such Confidential Information in order to effect the intent of the Agreement and who have entered into written confidentiality agreements with it as least as restrictive as those this Section. Upon any termination of this Agreement, the receiving party will promptly return to the disclosing party or destroy, at the disclosing party's option, all of the disclosing party's Confidential Information.
The term of this Agreement will begin upon the Effective Date and shall continue for as long as End User uses Hockeystick Service under subscription from Hockeystick, unless earlier terminated sooner under this section 8 (the "Term"). Hockeystick may terminate this Agreement in the event of any breach by End User if such breach has not been cured within thirty (30) days of notice to End User. No termination of this Agreement will entitle End User to a refund of any amounts paid by End User to Hockeystick or affect any obligations End User may have to pay any outstanding amounts owing to Hockeystick. End User's rights to use and access Hockeystick Service will immediately terminate upon termination or expiration of this Agreement. Sections 1, 4-7, 8 and 9 of this Agreement shall survive the expiration or termination of this Agreement.
10.1 Governing Law; Venue. This Agreement is governed by the laws of the Province of Ontario, Canada and the federal laws of Canada applicable therein without reference to its conflict of laws principles. Any dispute or action between End User and Hockeystick arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ontario, Canada. The United Nations Conventions on Contracts for the International Sale of Goods and any legislation enacted for same do not apply.
10.2 Entire Agreement; Severability. This Agreement, including all terms incorporated by reference into it, constitutes the entire agreement between End User and Hockeystick and supersedes any other communications with respect to its subject matter. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect.
10.3 Assignment. End User may not assign this Agreement without the prior written consent of Hockeystick. Hockeystick may transfer or otherwise freely assign its rights and/or obligation and/or this Agreement on written notice to End User.
10.4 No Waiver. Any delay by a party in enforcing the provisions of this Agreement shall not be deemed to be a waiver of such party's rights and shall not prejudice such party's right to take subsequent action.
10.5 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.
Our goal is to collect, use and disclose only that personal information reasonably required to enable us to provide the particular product or service that you have requested, to maintain our customer/visitor lists and/or to respond to your inquiries or feedback and for other purposes further described in this Policy. If you have provided us with contact information, we will maintain the confidentiality of your contact information and use it only for the purposes for which we have collected it, unless you agree that we may disclose it to other third parties (subject to the exclusions we have listed below).
Two types of information may be collected on the Website: Personal Information and Non-Personal Information.
"Personal Information" means any information about an identifiable individual, such as your name, address, e-mail address, credit card information, birth date and gender. At the time of collection we will set out clearly the information that we are collecting and the purposes for which we will use it. It is always your choice whether or not to provide Personal Information. If you choose not to provide requested Personal Information, you will not be able to use certain features of the Website and/or Services and you will not be able to engage in transactions through the Website.
We collect the following information about you and your use of our Website and Services in order to create a better, more personalized experience for you:
The following is a non-exhaustive list of the main means by which the Company may collect Personal Information on this Website:
We also may receive Personal Information from our business partners and other third parties, provided that such third parties confirm to us that their use of the Personal Information conforms to applicable privacy laws.
"Non-Personal Information" means information of an anonymous nature that is not linked to an identifiable individual, such as an Internet Protocol Address (IP Address), the domain used to access the Website, and the type and version of browser or operating system being used. Aggregate information, such as demographic statistics of our users (e.g. average age or geographical allocation of our users), number of visitors, what pages users access or visit, average time spent on this Website, and information volunteered by the user, such as survey information, is also considered Non-Personal Information. Business contact information such as the name, title, business address or telephone number of a business or professional person or an employee of an organization is not considered Personal Information.
Non-Personal Information is collected or derived by us in the course of operating the Website and the Services. For example, our web servers may automatically collect Non-Personal Information which is provided through your browser or stored on a Cookie when you choose to visit the Website. We need this information in order to operate the Services, but we do not share it with any third parties. This policy does not restrict our use of Non-Personal Information.
The Company collects Personal Information for the following purposes:
Your Personal Information will not be used for any purpose other than those above mentioned without your consent. The Company does not actively collect personal information for the purpose of sale or marketing in a way that specifically identifies the individual. In other words: we don't sell customer lists.
The Company feels very strongly about keeping the Personal Information you give us confidential. We will not share the Personal Information we collect from you with any third party, except as indicated below.
From time to time we may employ third parties to help us improve our Website and to provide various services (e.g. hosting, database management, maintenance, etc.). These third parties may have limited access to databases of user information or registered member information solely for the purpose of helping us to provide such services. These third parties are bound by confidentiality agreements.
We may disclose your Personal Information to a third party without your consent if we have reason to believe that disclosing this information is necessary to identify, contact or bring legal action against someone who may be causing injury to or interference with (either intentionally or unintentionally) our rights or property, other Website users or anyone else that could be harmed by such activities. We may disclose Personal Information when we believe in good faith that such disclosure is required by and in accordance with the law.
The security of your Personal Information is important to us. We use commercially reasonable efforts to ensure that your Personal Information is stored and maintained in a secure environment. In particular, all Personal Information contained in messages sent when using the Services encrypted during transmission to the Company using industry standard authentication and encryption technologies. We protect the Personal Information you give us by putting it behind multiple levels of firewalls, with active intrusion detection systems.
You can help protect the security of your Personal Information. For instance, never give out your password to another person, and remember to log out of your account and close your browser window when you finish using the Website, so that other people using the same computer won't have access to your Personal Information. We will never ask you for your password in an unsolicited phone call or in an unsolicited e-mail.
Our servers are located in Canada and the United States and accordingly your Personal Information may be available to government agencies and/or law enforcement in those countries under a lawful order, irrespective of the safeguards We have put in place for the protection of your Personal Information. By using our Website and Services, you consent to the hosting of your Personal Information in Canada and the United States. We will use commercially reasonable efforts to provide you with at least 30 days' notice of any such changes in the processing location.
The Company will keep your Personal Information for as long as it remains necessary for the identified purposes in Section 4 or as required by law, which may extend beyond the termination of our relationship with you.
You acknowledge and agree that if you request that your name be removed from our databases, it may not be possible to completely delete all your Personal Information due to technological and legal constraints.
You have the right to access your Personal Information to verify the Personal Information that we have collected in respect of you. Upon receipt of your written request, we will provide you with a copy of your information. We will make every reasonable effort to keep your Personal Information accurate and up-to-date, and we will enable you to revise the Personal Information as appropriate. Having accurate Personal Information about you enables us to give you the best possible service.
325 Front Street West
The Company will endeavour to deal with all such requests for access and modifications in a timely manner.
The Company joins the industry in recognizing that children, including young teens, may not be able to make informed choices about Personal Information requested online. Accordingly, the Company does not target children or teenagers (younger than eighteen years of age) for collection of information online. The Company does not solicit or collect Personal Information from children and teenagers under eighteen. In addition, the Company will encourage children to seek the consent of their parents before providing any information about themselves or their households to anyone on the Internet. If the Company becomes aware of any Personal Information it has collected about any person under the age of 18, it will destroy such information.
Customer on behalf of itself, and for the benefit of its Affiliates ("Customer"), has contracted with Hockeystick.co Inc. ("Hockeystick"), to perform certain processing functions on behalf of the Customer pursuant to a services agreement entered into between them ("Services Agreement"), including the processing of Personal Data (as defined in the Definitions section below).
The purpose of this Agreement is to ensure that Hockeystick provides the services under the Services Agreement ("Services") to Customer in a manner that complies with the Data Protection Legislation (again, as defined below).
In consideration of the continued relationship and the duties stated herein, the parties agree as follows:
1.1 The type of Personal Data processed pursuant to this Agreement, including the subject matter, duration, nature and purpose of the processing, and the categories of data subjects, is as described in Annex 1.
1.2 Each of Hockeystick and Customer warrants that it has complied with (and shall procure that any of its staff and/or subcontractors comply), and undertakes that it shall continue to comply at all times with the Data Protection Legislation.
1.3 In respect of the parties' rights and obligations under this Agreement regarding the Personal Data, the parties hereby acknowledge and agree that Customer is the Data Controller and Hockeystick is the Data Processor and accordingly Hockeystick agrees that it shall process all Personal Data in accordance with its obligations pursuant to this Agreement.
1.4 Each of Hockeystick and Customer shall notify to each other an individual within its organization authorized to respond from time to time to enquiries regarding the Personal Data and each of Hockeystick and Customer shall deal with such enquiries promptly.
1.5 With respect to any Personal Data processed pursuant to this Agreement by Hockeystick for and on behalf of Customer, Hockeystick warrants and undertakes that it shall:
(a) only process the Personal Data in order to provide the Services and shall act only in accordance with this Agreement and Customer's written instructions issued from time to time. If Applicable Law requires it to process Protected Data other than in accordance with the Processing Instructions, Hockeystick shall notify the Customer of any such requirement before processing the Protected Data (unless Applicable Law prohibits such information on important grounds of public interest); and
(b) shall inform the Customer if Hockeystick becomes aware of a Processing Instruction that, in Hockeystick's opinion, infringes Data Protection Laws.
(c) implement appropriate technical and organizational measures to ensure a level of security appropriate to the risks that are presented by the processing, in particular protection against accidental or unlawful destruction, loss, alteration, unauthorized disclosure of, or access to Personal Data transmitted, stored or otherwise processed pursuant to this Agreement.
(d) take all reasonable steps to ensure that only authorized personnel have access to such Personal Data and that any persons whom it authorizes to have access to the Personal Data will respect and maintain all due confidentiality;
(e) ensure that all Hockeystick personnel authorized to process Protected Data are provided with appropriate training in relation to the Data Protection Laws and Hockeystick (and Customer's as applicable) data protection procedures.
(f) hold all Personal Data separately from any other data held by Hockeystick and ensure that it is readily identifiable as the Customer's Personal Data;
(g) maintain, written records of all categories of processing activities carried out on behalf of the Customer;
(h) not engage any sub-processors in the performance of the Services without the prior written consent of Customer and otherwise in accordance with Clause 1.6 at all times;
(i) immediately notify Customer of any actual or suspected incident of unauthorized or accidental disclosure of or access to any Personal Data or other breach of this Agreement by any of its staff, sub-processors or any other identified or unidentified third party (a "Security Breach");
(j) promptly provide Customer with full cooperation and assistance in respect of the Security Breach and all information in Hockeystick's possession concerning the Security Breach, including the following:
(i) the probable cause and consequences of the breach;
(ii) the categories of Personal Data involved;
(iii) a summary of the probable consequences for the relevant data subjects;
(iv) a summary of the unauthorized recipients of the Personal Data; and
(v) the measures taken by Hockeystick to mitigate any damage;
(k) where applicable in respect of any Personal Data processed pursuant to this Agreement, provide full cooperation and assistance to Customer at Customer’s cost in ensuring compliance with:
(i) Customer's obligations to respond to requests from any data subject(s) seeking to exercise its/their rights under Chapter III of the GDPR, including by notifying Customer of any written subject access requests Hockeystick receives relating to Customer's obligations under the Data Protection Legislation within ten Business Days; and
(ii) Customer's obligations set out under Articles 32 – 36 of the GDPR to:
(A) ensure the security of the processing;
(B) notify the relevant supervisory authority, and any data subject(s), where relevant, of any breaches relating to Personal Data;
(C) carry out any data protection impact assessments ("DPIA") of the impact of the processing on the protection of Personal Data; and
(D) consult the relevant supervisory authority prior to any processing where a DPIA indicates that the processing would result in a high risk in the absence of measures taken by Customer to mitigate the risk.
1.6 Hockeystick will ensure that any person it engages to provide the services on its behalf in connection with this Agreement does so only on the basis of a written contract which imposes on such person terms equivalent to those imposed on Hockeystick in this Agreement (the "Relevant Terms"). Hockeystick shall procure the performance by such person of the Relevant Terms and shall be directly liable to Customer for any breach by such person of any of the Relevant Terms.
1.7 Hockeystick agrees that Customer is entitled to monitor Hockeystick's compliance with the Data Protection Legislation and its obligations under this Agreement at any time during regular business hours at Customer’s cost. Hockeystick agrees to provide Customer with all information that is necessary to conduct these monitoring procedures within the time period specified by Customer. If Customer believes that an on-site audit is necessary, Hockeystick agrees to give Customer access to Hockeystick's premises (subject to any reasonable confidentiality and security measures at a mutually acceptable time), and to any stored Personal Data and data processing programs it has on-site. Customer is entitled to have the audit carried out by a third party reasonably acceptable to Hockeystick and subject to such third party entering into such confidentiality agreement as my be reasonably required by Hockeystick.
1.8 If, in the performance of this Agreement, Hockeystick transfers any Personal Data received from or on behalf of Customer to any third party (which shall include without limitation any affiliates of Hockeystick) where such third party is located outside the European Economic Area, Hockeystick shall in advance of any such transfer seek the written instructions of Customer, which may include:
(a) the requirement for Hockeystick to execute or procure that the third party execute Standard Contractual Clauses for transfers from Data Controllers to Data Processors approved by the Commission pursuant to Decision 2010/87/EU, as amended by Commission Implementing Decision (EU) 2016/2297;
(b) the requirement for the third party to be certified under the Privacy Shield framework; or
(c) the existence of any other specifically approved safeguard for data transfers (as recognized under the Data Protection Legislation) and/or a European Commission finding of adequacy.
1.9 Hockeystick shall, at the Customer's election and on written request, either delete or return all the Protected Data to the Customer in such form as the Customer reasonably requests within a reasonable time after the earlier of:
(a) the end of the provision of the relevant Services related to processing; or
(b) once processing by Hockeystick of any Protected Data is no longer required for the purpose of Hockeystick's performance of its relevant obligations under this Agreement,
and delete existing copies (unless storage of any data is required by Applicable Law and, if so, Hockeystick shall inform the Customer of any such requirement).
1.10 (a) any condition or warranty which might otherwise be implied into or incorporated in the Agreement, whether by statute, common law or otherwise, is expressly excluded from the Agreement to the maximum extent permitted by law;
(b) Hockeystick's maximum aggregate liability to Customer under the Agreement shall in no circumstances exceed an amount equal to the fees paid under this Agreement in the 12 month period preceding the event giving rise to the claim from Customer to Hockeystick;
(c) Hockeystick shall not be liable for: (i) any loss or damage suffered by Customer arising out of any act, omission, misrepresentation or error made by or on behalf of Customer; or (ii) any delay in or omission of publication or transmission or any error in any press or other publication unless such delay, omission or error is due to its own default or neglect.
1.11 This Agreement is without prejudice to the rights and obligations of the parties under the Services Agreement which shall continue to have full force and effect. In the event of any conflict between the terms of this Agreement and the terms of the Services Agreement, the terms of this Agreement shall prevail so far as the subject matter concerns the processing of Personal Data.
1.12 This Agreement shall be governed by and construed in accordance with the laws of Province of Ontario and federal laws of Canada applicable therein and each of the parties agrees to submit to the non-exclusive jurisdiction of the courts of Toronto, Ontario, Canada in respect of any claim or matter arising under this Agreement.
Capitalized terms used in this Agreement shall have the following meanings:
2.1 Applicable Law means as applicable and binding on Customer, Hockeystick and/or the Services stated in the Agreement:
(a) any law, statute, regulation, by-law or subordinate legislation in force from time to time to which a party is subject and/or in any jurisdiction that the Services are provided to or in respect of;
(b) the common law and laws of equity as applicable to the parties from time to time;
(c) any binding court order, judgment or decree; or
(d) any applicable direction, policy, rule or order that is binding on a party and that is made or given by any regulatory body having jurisdiction over a party or any of that party’s assets, resources or business;
2.2 "Data Controller" has the meaning set out in the Data Protection Legislation;
2.3 "Data Processor" has the meaning set out in the Data Protection Legislation;
2.4 "Data Protection Legislation" means all privacy laws applicable to any Personal Data processed under or in connection with this Agreement, including, without limitation, the Data Protection Directive 95/46/EC (as the same may be superseded by the General Data Protection Regulation 2016/679 (the "GDPR")), the Privacy and Electronic Communications Directive 2002/58/EC and all national legislation implementing or supplementing the foregoing and all associated codes of practice and other guidance issued by any applicable data protection authority, all as amended, re-enacted and/or replaced and in force from time to time;
2.5 "Personal Data" has the meaning set out in the Data Protection Legislation and relates only to personal data of which Customer is the Data Controller and in relation to which the Suppler is providing the Services under the Services Agreement;
2.6 "process" and other derivations such as "processed" and "processing" means any use of or processing applied to any Personal Data and includes "processing" as defined in the Data Protection Legislation;
2.7 "protected data" means Personal Data received from or on behalf of Customer in connection with the performance of Hockeystick's obligations under this Agreement;
For the purposes of Clause 1.1, the parties set out below a description of the Personal Data being processed under the terms of the Agreement and further details required pursuant to the GDPR.
1. TYPES OF PERSONAL DATA: title, first name, last name, address, email address.
2. DURATION OF PROCESSING: until the earliest of (i) expiry/termination of the Services Agreement; or (ii) the date upon which processing is no longer necessary for the purposes of either party performing its obligations under the Services Agreement (to the extent applicable.
3. NATURE OF PROCESSING: collection, analysis, storage, duplication, deletion and disclosure to the extent required for the purpose set out below.
4. PURPOSE OF PROCESSING: necessary for the provision of the Services.
5. CATEGORIES OF DATA SUBJECT: employees of Customer.
Hockeystick.co Inc. (“HOCKEYSTICK”) seeks to make publicly available data that it has compiled from various sources and arranged in an open database (the “Hockeystick Open Database”).
PLEASE CAREFULLY READ THIS AGREEMENT WHICH CONTAINS THE TERMS AND CONDITIONS UNDER WHICH YOU ARE ACQUIRING A LICENSE TO USE THE OPEN DATABASE. IF YOU DO NOT ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE ODbL, THEN DO NOT USE THE OPEN DATABASE. IF YOU ARE AN AGENT OR EMPLOYEE OF ANOTHER ENTITY YOU REPRESENT AND WARRANT THAT (I) THE INDIVIDUAL ACCEPTING THIS AGREEMENT IS DULY AUTHORIZED TO ACCEPT THIS AGREEMENT ON SUCH ENTITY'S BEHALF AND TO BIND SUCH ENTITY, AND (II) SUCH ENTITY HAS FULL POWER, CORPORATE OR OTHERWISE, TO ENTER INTO THIS AGREEMENT AND PERFORM ITS OBLIGATIONS HEREUNDER.
2.1 “Data” means all data and electronic means information resources protected by copyright, database rights or other intellectual property rights, or other information that is offered for use under the terms of this licence
2.2 “Derivative Database” means a database based upon the Hockeystick Open Database, and includes any translation, adaptation, arrangement, modification, or any other alteration of the Hockeystick Open Database or of a substantial part of the contents. This includes, but is not limited to, extracting or re-utilising the whole or a substantial part of the contents in a new database
2.3 “ODbL” means the Open Database License (ODbL) v1.0.
2.4 “Licensee” or “You” means the person or organization accessing the Open Database.
3.1 Database License. HOCKEYSTICK makes the Hockeystick Open Database available for use under the Open Database License (ODbL). Subject to the ODbL, HOCKEYSTICK grants Licensee a worldwide, royalty-free, non-exclusive, terminable (but in accordance with the ODbL) license to use the Hockeystick Open Database for the duration of any applicable copyright and database rights. These rights explicitly include commercial use, and do not exclude any field of endeavour. To the extent possible in the relevant jurisdiction, these rights may be exercised in all media and formats whether now known or created in the future.
3.2 Attribution. If Licensee uses the Database, Licensee is required to attribute the Hockeytick Open Database as the source and include a hyperlink to the HOCKEYSTICK website. For example, the following notice will satisfy the attribution requirement, provided a hyperlink to Hockeystick.co is also included: “Contains information from the Hockeystick Open Database License, which is made available here under the Open Database License (ODbL).”
3.3 Derivative Databases. If Licensee makes any improvements to the Database, including by combining new information or creating a Derivative Database, Licensee is required to share any such improvements under the ODbL (“share alike” requirement).
3.4 Restrictions. Licensee shall not use any manual or automated data mining, scraping, crawling, spiders, robots or similar data gathering or extraction methods on the Hockeystick Open Database or any related webpage, screen or other content contained in, generated by or relating to the Hockeystick Open Database.
3.4 Exceptions. This licence does not grant you any right to use (i) personal information; (ii) third-party rights that HOCKEYSTCK is not authorized to license; (iii) information subject to other intellectual property rights, including patents, trade-marks and official marks; or (iv) other proprietary databases of HOCKEYSTICK or any third party that are not part of the Hockeystick Open Database.
4.1 Disclaimer. Data made available through the Database has been obtained through various sources and is not independently verified by HOCKEYSTICK. Accordingly, HOCKEYSTICK does not make any representations, warranties or conditions as to the accuracy or quality of the Data. Use of the Database is at Licensee’s sole risk.
4.2 Disclaimer of Implied Warranties. TO THE GREATEST EXTENT PERMITTED BY LAW, THE HOCKEYSTICK OPEN DATABASE IS PROVIDED AN "AS IS" BASIS AND THERE ARE NO WARRANTIES, REPRESENTATIONS OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, ARISING BY STATUTE, OPERATION OF LAW, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, REGARDING THE HOCKEYSTICK OPEN DATABASE OR ANY OTHER PRODUCT OR SERVICE PROVIDED UNDER THIS AGREEMENT OR IN CONNECTION WITH THIS AGREEMENT BY HOCKEYSTICK. HOCKEYSTICK DISCLAIMS ANY IMPLIED WARRANTIES OR CONDITIONS OF QUALITY, MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HOCKEYSTICK DOES NOT REPRESENT OR WARRANT THAT THE HOCKEYSTICK OPEN DATABASE SHALL MEET ANY OR ALL OF LICENSEE'S PARTICULAR REQUIREMENTS, THAT THE HOCKEYSTICK OPEN DATABASE WILL OPERATE ERROR-FREE OR UNINTERRUPTED OR THAT ERRORS OR DEFECTS IN HOCKEYSTICK OPEN DATABASE CAN BE FOUND OR CORRECTED.
UNDER NO CIRCUMSTANCES WILL HOCKEYSTICK BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, LOSS OF DATA OR OTHER SUCH PECUNIARY LOSS) ARISING OUT OF OR RELATED TO THE USE OR INABILITY TO USE THE SOFTWARE, EVEN IF HOCKEYSTICK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL HOCKEYSTICK'S AGGREGATE LIABILITY FOR DAMAGES ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED $500 CDN.
To the maximum extent permitted by applicable law, you agree to defend, hold harmless and indemnify HOCKEYSTICK and its subsidiaries, affiliates, officers, agents, licensors, and employees from and against any third-party claim arising from or in any way related to your use of the Hockeystick Open Database, including any liability or expense arising from all claims, losses, damages (actual and/or consequential), suits, judgments, litigation costs and attorneys' fees, of every kind and nature. HOCKEYSTICK shall use good faith efforts to provide you with written notice of such claim, suit or action.
7.1 Updates: HOCKEYSTICK may make changes to the terms of this licence from time to time and issue a new version of the licence. Your use of the Data will be governed by the terms of the licence in force as of the date you accessed the information.
7.2 Governing Law; Venue. This Agreement is governed by the laws of the Province of Ontario, Canada without reference to its conflict of laws principles. Any dispute or action between Licensee and HOCKEYSTICK arising out of or relating to this Agreement shall be subject to the exclusive jurisdiction of the courts of Ontario, Canada.
7.3 Entire Agreement; Severability. This Agreement is the entire agreement between Licensee and HOCKEYSTICK and supersedes any other communications with respect to its subject matter. If any provision of this Agreement is held invalid or unenforceable, the remainder of this Agreement will continue in full force and effect.
7.4 No assignment. Licensee may not assign this Agreement without the prior written consent of HOCKEYSTICK.
7.5 No waiver. Any delay by a party in enforcing the provisions of this Agreement shall not be deemed to be a waiver of such party's rights and shall not prejudice such party's right to take subsequent action.
7.6 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.