Terms of Service
Version February 27, 2020
Mesh Insights Inc. (“MESH Insights”)
provides information and services on its website(s) (the
“Sites”) under these terms and conditions, as may be
amended from time to time (the “Terms of Service”). By using any Services that are
accessible from the Sites, whether as a free trial
or pursuant to a quote or order form signed with MESH Insights, the Customer and its Users are agreeing to be
bound by these Terms of Service and the
Mesh Insights Privacy Policy that explains how we collect, use, protect and disclose
information from the use of the Sites and Services.
Please read these Terms of Service carefully as by
clicking “I accept” you are confirming that you have read,
understand and accept this Agreement and are
providing your explicit consent to the processing of
any personal or non-personal data that you provide
to Mesh in using the Services.
Mesh Insights reserves the right to update this Agreement
from time to time as set out in Section 14.3 below.
1. Definitions
In this Agreement, the following words shall have the
following meanings:
“Agreement” means the Terms of Service, any Order Form
for services as agreed by the parties from time to time,
and the Privacy Policy together.
“Confidential Information” means any and all information
in whatsoever form relating to MESH Insights or the Customer, or the business, strategies,
pricing structures, products and services, technical processes,
computer software and software applications (both source
code and object code), or Intellectual Property Rights of
the parties which comes into a party’s possession by
virtue of its entry into this Agreement or provision of the
Services, and which the party regards, or could reasonably
be expected to regard, as confidential and any and all information
which has been or may be derived or obtained from any such
information.
“Customer” means a company or individual that (a)
accesses the Services for a free trial; or (b)
signs an Order Form and may access the Services for
the Term.
“Customer Data” means all data, information or material
provided, submitted or imported into the Services by
a Customer and its Users in the course of using the
Services.
“Data Protection Laws” means all data protection and
privacy laws applicable to the processing of Personal
Data under the Agreement.
“Documentation” means user manuals, online help,
policies and/or other support
documentation of Mesh Insights, as amended by Mesh
Insights from time to time in its sole discretion, that
may be provided to Users or the Customer.
“Effective Date” means the date on which the Customer or
Users commenced use of the Services or the date the
Service was made available as documented in the Order
Form, whichever occurs first.
“Force Majeure” means anything beyond either party’s
reasonable control including but not limited to fire,
explosion, power failure, earthquake, flood, severe
storms, strike, embargo, acts of civil or military
authority, war, terrorism, cyber terrorism, Internet
service provider failures or delays, denial of service
attacks, acts of God, actions or omissions of regulatory
or governmental bodies that impact the delivery of
Services.
“Initial Term” means a period of 12 months starting from the Effective Date, unless stated
otherwise in the Order Form.
“Intellectual Property Rights” means all copyrights,
patents, utility models, trade marks, service marks,
registered designs, moral rights, design rights (whether
registered or unregistered), technical information,
algorithms, know-how, database rights, business names
and logos, computer data, generic rights, proprietary
information rights and all other similar proprietary
rights (and all applications and rights to apply for
registration or protection of any of the foregoing) as
may exist anywhere in the world.
“Order Form” means an Mesh Insights quote which has been
accepted by Customer, or a written document signed
by both parties, which identifies the specific Services
ordered, sets out the fees for use of the Services, and
among other things includes the Term, number of Users,
and billing and payment information.
“Personal Data” means any information about an
individual who can be identified but does not include
aggregated or anonymous information where an individual
cannot be identified.
“Privacy Policy” means Mesh Insights’s privacy policy as
amended from time to time.
“Renewal Term” means a period of 12 months, unless stated otherwise in the Order Form.
“Services” means the online Diversity Intelligence™
software application services of MESH Insights which include MESH
Insights branded and supported applications, updates, upgrades,
support, and content (e.g., audio and visual information,
documents) as further described in an Order Form. The Services
do not include non-MESH Insights applications that may be
provided by third parties, whether or not such applications
are made available on an Mesh Insights website.
“Term” means the Initial Term plus any Renewal Terms,
together.
“Users” means a Customer’s employees, affiliates,
representatives, consultants, contractors or agents who
have been supplied user identifications and passwords by
the Customer or Mesh Insights to access the Services,
not to exceed the number of User Licenses purchased by
the Customer.
“User Licenses” refers to the number of named licenses
that a Customer has purchased as set out in the
Order Form.
2. License
2.1
Mesh Insights agrees to provide the Services to the Customer
for the Term in accordance with this Agreement.
2.2 The Customer is granted a limited, non-exclusive and
non-transferable licence to use the Services (including any
associated software, Intellectual Property Rights and Confidential
Information) as a User during the Term.
2.3 Access to and use of the Site and Services is subject to
all international, federal, provincial and local laws and
regulations. Customer and User agree not to use the Site
or Services in any way that violates such laws or regulations.
2.4 All Intellectual Property Rights and title to the Services
shall remain with Mesh Insights and/or its
licensors and no interest or ownership in the Services, the
Intellectual Property Rights, or otherwise, is conveyed to
the Customer or Users under this Agreement. No right to modify,
adapt, or translate the Services or create derivative works
from the Services is granted to the Customer. Nothing in
this Agreement shall be construed to mean, by inference or
otherwise, that the Customer has any right to obtain source
code for the software comprised within the Services.
2.5 Subject to any rights granted under applicable law, disassembly,
decompilation or reverse engineering and other source code
derivation of the software comprised within the Services
is prohibited.
2.6 The Services are provided to, and may be used solely by,
the Customer and its licensed Users. The Customer may not:
(a) lease, loan, resell or otherwise distribute the Services;
or (b) permit access to or use of the Services by or on behalf
of any third party except as permitted by MESH Insights and documented in an Order Form.
3. Fees
3.1 In consideration of the provision of the Services by MESH Insights, the Customer shall pay MESH Insights the fees for use of the Services during the Term
as documented in an Order Form.
3.2 Invoices will be issued monthly or annually in advance,
as specified in the Order Form. All invoices shall be issued
and are payable in full by the Customer in the currency set
out in the invoice, plus any applicable taxes. Invoices are
due upon receipt.
3.3 Any charges for additional products and services will be
charged and invoiced when ordered by the Customer and as
set out in any additional Order Form.
3.4 All fees are non-refundable unless expressly stated otherwise,
or otherwise provided by law.
3.5
Mesh Insights may modify fees and charges at the commencement
of a Renewal Term upon giving at least ninety (90) days’ prior written notice to Customer.
3.6
Mesh Insights may charge interest on late payments at a rate
of 1% of the unpaid amount
each month up to the maximum that is permitted by law.
In addition, Customers shall reimburse Mesh Insights for
all reasonable costs incurred by MESH Insights in collecting late payments including reasonable
attorneys’ fees and other costs and expenses. MESH Insights may suspend or cancel the Services if a Customer
does not pay any amounts owed in full and on time.
4. Term and Termination
4.1 This Agreement will commence on the Effective Date and
continue for the Initial Term. Upon expiry of the Initial
Term this Agreement shall automatically renew for further
Renewal Terms, unless a party terminates early in accordance
with its rights set out below.
4.2 Either party may terminate this Agreement or reduce the
number of User Licenses without reason, effective from the
expiry of the Initial Term or any Renewal Period, upon giving
at least thirty (30) days’
written notice prior to the expiry of the Initial Term
or Renewal Period.
4.3 Either party shall be entitled to terminate this Agreement
on written notice to the other if the other party: (a) goes
into voluntary or involuntary liquidation (otherwise than
for the purpose of a solvent reconstruction or amalgamation)
or has a receiver or administrator or similar person
appointed or is unable to pay its debts or ceases or threatens
to cease to carry on business or if any event occurs which
is analogous to any of the foregoing in another jurisdiction;
or (b) commits a material breach of any term of this
Agreement which, if capable of remedy, is not remedied within
twenty (20) days of receipt
of a written notice specifying the breach and
requiring it to be remedied; or © is prevented by Force
Majeure from fulfilling its obligations for more than
thirty (30) days. If MESH Insights terminates the Agreement pursuant to Section
4.3(b), the Customer shall promptly pay MESH Insights any unpaid Fees for the remainder of the Term
and any amounts paid by the Customer for Services not yet
delivered will be non-refundable.
4.4 Upon termination of this Agreement, MESH Insights shall immediately cease providing the Services
to the Customer and its Users and all licences granted hereunder
shall terminate.
4.5 All clauses which by their nature should continue after
termination or expiry shall, for the avoidance of doubt,
survive the expiration or sooner termination or expiry of
this Agreement and shall remain in force and effect.
5. Provision of the Services
5.1
Mesh Insights shall: (a) provide support for the Services
to Customer; (b) use commercially reasonable efforts to make
the Services available 24 hours a day, 7 days a week, excluding: (i) planned downtime
(of which Mesh Insights shall give at least five (5) days’ notice via the Services); or (ii) any
unavailability caused by Force Majeure; and © provide
the Services in accordance with all applicable laws and
government regulations
5.2
Mesh Insights may suspend Customer’s use of the Services
if Mesh Insights reasonably believes that Customer’s continued
use of the Services (a) represents a threat to its network
function or integrity, (b) may impair the Services, or ©
may interfere with any other person’s use of the Services.
5.3 Notwithstanding anything to the contrary herein, Customer
agrees that Mesh Insights may obtain and aggregate data from
use of the Services that is not identifiable with respect
to Customer or its Users (“Aggregated Anonymous Data”), and
Mesh Insights may use the Aggregated Anonymous Data to analyse,
improve, support and operate the Services.
6. Obligations of Customer
6.1 Customer warrants that it shall: (a) only issue paid-up
User Licenses to Users solely for its internal business purposes
and User Licenses will not be shared or used by more than
one individual User but may be reassigned from time to time
to new Users who are replacing former Users who no longer
use the Services; (b) be responsible for Users’ compliance
with the terms of this Agreement; © keep all passwords confidential;
(d) maintain reasonable security measures and use commercially
reasonable efforts to prevent unauthorized access to, or
use of, the Services and notify MESH Insights promptly of any unauthorized access or use; (e)
not alter, obscure, remove, interfere with or add to any
of the trademarks, trade names, markings or notices used
on Documentation, reports or other materials made available
as part of the Services; and (f) use the Services only in
accordance with the Documentation and applicable laws and
government regulations.
6.2 Customer warrants that it shall not: (a) make the Services
available to anyone other than Users; (b) use the Services
to store or transmit infringing, libellous, or otherwise
unlawful or tortious material, or to store or transmit material
in violation of third-party privacy rights; © use the Services
to store or transmit malicious code; (d) interfere with or
disrupt the integrity or performance of the Services; (e)
attempt to gain unauthorized access to the Services or their
related systems or networks; or (f) access the Services in
order to build a competitive product or service or to
copy any features, functions or graphics of the Services.
7. Data Protection
7.1
Mesh Insights shall comply with all applicable Data Protection
Laws throughout the Term. Mesh Insights may collect, use,
retain and disclose Personal Data as outlined in the Privacy Policy. Any inquiries related to the Privacy Policy should be
directed to
support@mesh-insights.com.
7.2 Customer shall fully comply with all applicable Data Protection
Laws and shall take all reasonable steps within Customer’s
power to ensure that Customer’s Users comply with all applicable
Data Protection Laws.
7.3 If a third party alleges infringement of its data
protection rights, Mesh Insights shall be entitled to take
measures necessary to prevent the infringement of a third
party’s rights from continuing.
8. Customer Data
8.1 Any information that the Customer provides to MESH Insights, including Customer Data uploaded to MESH Insights servers, information provided during registration
or information provided when ordering Services (such as the
Customer’s email address), will be used by MESH Insights in accordance with the terms of this Agreement
and the Privacy Policy.
8.2 The Customer has sole responsibility for the accuracy,
quality, integrity, legality, reliability, appropriateness
or right to use any Customer Data. Except as provided herein,
Mesh Insights acquires no right, title or interest from the
Customer under this Agreement in or to any Customer Data.
8.3
Mesh Insights shall maintain appropriate administrative,
physical, and technical safeguards for protection of the
security, confidentiality and integrity of Customer Data.
Mesh Insights shall not: (a) modify Customer Data; (b) disclose
Customer Data except as compelled by law or as expressly
permitted in writing by the Customer; or © access Customer
Data except to provide the Services and prevent or address
service or technical problems, or at the Customer’s request
in connection with customer support matters.
8.4
Mesh Insights performs regular backups of Customer Data for
the purpose of recovery in the event of a failure in
MESH Insights’s data centres. MESH Insights shall not be liable for the deletion, correction,
destruction, damage, loss or failure to store Customer Data
unless such deletion, correction, destruction, damage, loss
or failure is wholly attributable to the negligence of MESH Insights, its agents or employees.
9. Warranties
9.1
Mesh Insights warrants that: (a) the Services will conform
substantially to the description of them contained in the
Documentation; (b) it has the right to license the Services;
© the Services will be provided with reasonable skill and
care; (d) the Services will not infringe the Intellectual
Property Rights of a third party in any jurisdiction;
and (e) it is not prohibited from providing the Services
by any statutory or other rules or regulations in any relevant
jurisdiction. These warranties shall not: (i) cover deficiencies
or damages relating to any third-party components not furnished
by MESH Insights; or (ii) any third
party provided connectivity necessary for the provision or
use of the Services.
9.2 If during the Term a Customer notifies MESH Insights that a Service does not meet the above warranty,
Mesh Insights will, at its option, either: (a) terminate
the Service and return the amount paid for the Service prorated
for the unexpired portion of the Term; or (b) update such
Service to make it conform. These are Customer’s only remedies
for breach of warranty unless other remedies are required
to be provided under applicable law.
9.3 Except as expressly stated in this Agreement, all warranties
and conditions, whether express or implied by statute, common
law or otherwise (including but not limited to satisfactory
quality and fitness for purpose), are hereby excluded to
the fullest extent permitted by law. No warranty is made
regarding the results of usage of the Services or that the
functionality of the Services will meet the requirements
of the Customer or that the Services will operate uninterrupted
or error free. This Section 9.3 shall survive the termination
of this Agreement.
10. Indemnities
10.1 The Customer will indemnify, defend, and hold harmless
Mesh Insights, its affiliates, subsidiaries, suppliers or
agents from and against all liabilities, damages, costs and
expenses (including settlement costs and reasonable legal
costs) arising out of any claim by a third party against
Mesh Insights and its affiliates, subsidiaries, suppliers
or agents regarding: (a) Customer Data; (b) Customer’s use
of the Services in breach of this Agreement; © Users’ use
of the Services in breach of this Agreement; or (d) the processing
of Personal Data on behalf of, and in accordance with the
instructions of the Customer.
10.2
Mesh Insights will indemnify, defend, and hold harmless the
Customer from and against all liabilities, damages, costs
and expenses (including settlement costs and reasonable legal
costs) arising out of any claim by a third party against
Customer that use of MESH Insights’s
technology to provide the Services infringes the third party’s
Intellectual Property Rights. In no event will Mesh Insights
have any obligations or liability under this Section 10.2 arising from: (a) use of
any Services in a modified form or in combination with
materials not furnished by MESH Insights; and (b) any content, information, or data provided
by the Customer, Users, or other third parties.
10.3 If Mesh Insights believes the Services infringe or may
be alleged to infringe a third party’s Intellectual
Property Rights, then MESH Insights
may: (a) obtain the right for the Customer, at Mesh Insights’s
expense, to continue using the Services; (b) provide a non-infringing
functionally equivalent replacement; or © modify the Services
so that they no longer infringe. If MESH Insights does not believe the options described in this
section are commercially reasonable then MESH Insights may suspend or terminate Customer’s use of the
affected Services (with a pro-rata refund of prepaid
fees for the Services).
10.4 The party seeking indemnification will promptly notify
the other party of the claim and cooperate with the other
party in defending the claim. The indemnifying party will
have full control and authority over the defence, except
that: (a) any settlement requiring the party seeking indemnification
to admit liability requires prior written consent of the
indemnifying party, not to be unreasonably withheld or delayed
and (b) the other party may join in the defence with its
own counsel at its own expense. The indemnities above are
each party’s only remedy under this Agreement for any breach
by the other party of a third party’s Intellectual Property
Rights.
11. Limitation of Liability
11.1 Subject to Section 11.3, the aggregate
liability of each party to the other (whether in
contract, tort or otherwise) arising under or in
connection with this Agreement is limited to actual
direct damages not to exceed the amount paid under this
Agreement (excluding taxes) for the Services provided
during the twelve (12)
month period prior to the date on which the cause of
action arose.
11.2 In no event shall either party be liable to the other whether
arising under this Agreement or in tort (including negligence
or breach of statutory duty), misrepresentation or however
arising, for any incidental, special, punitive or consequential
damages, whatsoever, whether arising in negligence, tort,
statute, equity, contract, common law or any other cause
of action or legal theory, including but not limited to lost
profits, lost revenue, loss of data, lost business, failure
to realize expected savings or any other commercial or economic
loss of any kind whatsoever, arising out of or in connection
with this Agreement or the provision of the Services, even
if a party knew that such losses were possible or were
reasonably foreseeable.
11.3 The limits on liability set out above in this Section 11 (Limitation of Liability) apply to the fullest extent permitted
by applicable law, but do not apply to: (a) any indemnities
given under Section 10 (Indemnities);
or (b) a breach of the other party’s Intellectual Property
Rights.
12. Confidentiality
12.1 Each party shall protect all Confidential Information which
the other party provides to it (whether orally, in writing
or in any other form) using the same standards as the recipient
applies to its own comparable confidential information, but
in no event less than reasonable measures. Each party’s obligations
will not apply to information: (i) already known to it at
the time of disclosure; (ii) in the public domain or publicly
available; (iii) available from a third party who is
under no such obligation of confidentiality; or (iv) independently
developed by it.
12.2 Recipient agrees that it will use all Confidential Information
solely to fulfill its obligations under this Agreement, and
for no other purpose, and that it will hold all Confidential
Information in the strictest confidence. To that end, Recipient
will keep all Confidential Information in a secure place;
take all necessary measures to prevent unauthorized access,
use, reproduction or disclosure thereof; and limit access
to the Confidential Information only to individuals on a need-to-know
basis.
12.3 Each party may disclose confidential information to its
legal advisers to protect its own legitimate interests and
to comply with any legal or regulatory requirements. If any
court, regulatory authority, professional body or legal process
requires the recipient to disclose information covered by
this confidentiality obligation, then the recipient may make
any such disclosure; provided that the recipient will, if
permitted by law, advise the other party promptly of any
such requirement and cooperate, at such other party’s expense,
in responding to it. Upon the termination or expiration of
the Agreement each party will return the confidential information
of the other party, or certify in writing its destruction,
except that a party may retain the confidential information
it has received for purposes of its records management program
or in compliance with its legal or governance obligations.
12.4 The parties acknowledge and agree that any unauthorized
use or disclosure of Confidential Information may cause irreparable
harm and result in significant damages to the disclosing
party, which harm and/or damages may be difficult
to ascertain. Accordingly, in the event of any breach or
threatened or anticipated breach of this Agreement by a recipient
party, the disclosing party shall be entitled to immediately,
without the posting of a bond or other security and
without proof of actual damages, to equitable relief, including
specific performance and temporary, preliminary and permanent
injunctive relief, in addition to any other remedies that
may be available at law or in equity
13. Notices
13.1
Mesh Insights may give notices in connection with this Agreement
by means of electronic mail to the Customer’s e‑mail address
on record in MESH Insights’s account
information or by registered post or courier to the Customer’s
address on record in MESH Insights’s
account information. Notices in connection with changes in
the Services and policies shall be posted online within the
Services. Notices shall be deemed to have been given when
received by the Customer.
13.2 The Customer may give notices in connection with termination
or modification of the Services ordered under any Order Form
via e‑mail to the Customer’s MESH Insights customer service contact. All other notices to
Mesh Insights required by this Agreement shall be sent by
electronic mail to support@mesh-insights.com
or by registered post or courier to MESH Insights at the following address:
Mesh Insights Inc.
105 Barrington Crescent
Moncton NB E1G 4V4
Canada
Notices shall be deemed given when received
by Mesh Insights.
14. Modification to Services and Agreement
14.1
Mesh Insights may change the Services or its policies relating
to the Services by giving Customer appropriate notice of
such changes, which notice may be provided by email to Customer’s
email address of record with MESH Insights or by posting in the Services.
14.2
Mesh Insights may from time to time place limits on use of
the Services, for example, the number and type of reports
the Customer can generate through the Services.
14.3
Mesh Insights may amend this Agreement by giving Customer
thirty (30) days’ prior
notice of the amendment, which notice may be provided by
e‑mail to Customer’s email address of record with Mesh
Insights or by posting in the Services. By continuing to
use our Services after revisions are posted, you are
agreeing to the amended Agreement.
15. Miscellaneous
15.1 This Agreement may not be assigned by either party without
the prior written approval of the other party but may be
assigned with notice but without required consent to: (a)
an affiliate of either party; (b) an acquirer of assets of
either party; or © a successor by sale or merger to
either party. Any purported assignment in breach of this
section shall be null and void. In the event of assignment
by the Customer under the provisions of (a), (b) or © in
this section 15.1, Mesh Insights reserves the right to amend the terms
of the Order Form for the Services.
15.2 Any controversy, dispute or claim of any kind between the
parties shall be governed by and interpreted in accordance
with the laws of the province of Ontario without regard to
any provisions governing conflicts of laws. Each party attorns
to the exclusive jurisdiction of the courts in Toronto, Ontario
in any action arising out of or relating to this Agreement.
However, this choice of jurisdiction does not prevent either
party from seeking injunctive relief with respect to a breach
of any Intellectual Property Rights or confidentiality obligations
in any appropriate jurisdiction.
15.3 If a court holds any provision of this Agreement to
be illegal, invalid or unenforceable, the rest of the document
will remain in effect and this Agreement will be amended
to give effect to the eliminated provision to the maximum
extent possible.
15.4 A waiver of any breach of this Agreement is
not a waiver of any other breach. Any waiver must
be in writing and signed by an authorized representative
of the waiving party.
15.5 This Agreement constitutes the entire agreement and understanding
between the parties and supersedes any prior or contemporaneous
agreements, representations, negotiations and discussions
between the parties concerning the subject matter hereof.
15.6 In the event of any inconsistency between the content of
the Terms of Service, the Order Form and the Privacy Policy, the terms of the Order Form shall prevail followed by
the Terms of Service and then the Privacy Policy.
15.7 Neither party will be liable for any breach of this Agreement
due to Force Majeure. However, this section will not apply
to Customer’s payment obligations under this Agreement. As
soon as practicable after an event of Force Majeure arises,
the party affected by Force Majeure must notify the other
party of the extent to which the notifying party is unable
to perform its obligations under this Agreement.
15.8
Mesh Insights and the Customer are independent contractors.
Neither party nor any of their employees or other agents
shall be deemed to be an employee, agent, servant, joint
venture or partner of the other party.
15.9 This Agreement shall not confer any rights or remedies
upon any person other than the parties and their respective
successors and permitted assigns. Questions regarding this
Agreement may be directed to MESH Insights by electronic mail to support@mesh-insights.com
or by registered post, courier, or regular mail addressed
to the address noted in section 13.2 above.