Last Amendment Date: June 21, 2016
This Subscription Agreement (“Agreement”) is between Lambda Solutions Inc. (“Lambda”, “we” or “us”) and the <Client> as the purchaser or user of Lambda Services (defined below) (“Customer”, “you” or “your”). The commencement date of this Agreement (“Commencement Date”) is the date that Customer and Lambda have signed this Agreement.
1. DEFINITIONS AND INTERPRETATION
1.1 In this Agreement, unless the context otherwise requires:
Business Day means any day other than a Saturday or Sunday or a statutory public holiday in Vancouver, British Columbia, Canada.
Designated Contacts means the individuals designated by you during the purchase process and agreed to by us who are authorized to contact our customer support staff.
Documentation means all documentation provided in conjunction with the Totara Product, which includes, but is not limited to:
- the source code form of the Totara Product;
- manuals, guides and other written material in print or electronic book format;
- training slides and material; and
- public or private online documentation in the form of wikis, forums or blogs.
Error means a reproducible defect in the Totara Product when operated on a Supported Environment, which causes the Totara Product not to operate substantially in accordance with our Documentation or as we otherwise intended it to operate.
Error Correction means a modification or patch that brings the Totara Product into substantial conformance with our Documentation or the intended operation of the Totara Product, or a procedure, routine or other information that enables you to avoid the practical adverse effect of an Error.
Force Majeure Event means an event or occurrence which a party could not have reasonably foreseen and taken reasonable measures to prevent, but does not include strikes, lock-outs or any other form of labor dispute or delay caused by contractual or labor relations between the parties and any of their employees, agents, sub-contractors or suppliers, or inability to perform due to lack of available funds.
GST means goods and services tax in terms of the Excise Tax Act (Canada) R.S.C., 1985, c. E-15, Part IX, at the rate prevailing from time to time.
Intellectual Property means, in respect of any party, all intellectual and industrial property rights and interests (including common law rights and interests) owned or held by that party, or lawfully used by that party.
Insolvency Event in relation to a party means circumstances that reasonably indicate that there is a significant risk that a party is or will become unable to pay its debts as they fall due, including but not limited to the appointment of a receiver, administrator, liquidator or similar officer, or the entering into an arrangement or scheme with creditors, or like event.
Instance means a Production Instance or a Non-Production Instance, as the case may be.
Lambda Services means the services described in clause 4.1.
Non-Production Instance means an instance of the Totara Product which is implemented to support the development, test or deployment of a business process of the Customer, in connection with a Production Instance.
Maintenance Release means an update to an existing version of the Totara Product containing Error Corrections or minor functionality enhancements. A Maintenance Release is designated as a numbered service pack for the current version, with no change in the version number.
New Version Release means a new version of the Totara Product containing new features or enhancements to functionality. A New Version Release is designated by an increase in the version number. e.g. from 1.5 to 1.6 or 1.0 to 2.0.
Production Instance means an instance of the Totara Product which is deployed to support an operational business process of the Customer.
Second-level Support means the support we provide relating to application issues, but does not include support in the form of code changes. If you are a hosted customer, Second-level Support includes support of the hosted environment.
Subscriber Portal means online user community located at http://community.totaralms.com.
Subscription Term means one (1), two (2) or three (3) years (as per Customer/your signed quote) together with any renewals or extensions in accordance with this Agreement.
Supported Environment means hardware, operating system and database platform meeting the minimum system configuration requirements for the proper use and operation of the Totara Product as set out in our Documentation.
Taxes means any form of taxation, levy, duty, customs fee, charge or impost of whatever nature excluding any taxes based solely on the net income of Lambda.
Totara means Totara Learning Solutions Limited.
Totara Product means a single Instance of the Totara Learning Management System.
Totara Product Core Components means:
- those core code components of the Totara Product attributable to, and the Intellectual Property of, Totara; and
- excludes any code components attributable to the Moodle product, available from a standard release of Moodle from http://download.moodle.org/ (or other such successor website).
Third-level Support means the support provided by us to resolve problems with the application that require changes to the code.
Updates means any releases (including any preproduction releases) of the Totara Product created or made available by us, including bug fixes, improvements, enhancements, translations, localizations, new versions or releases, releases on additional operating environments, and other changes to the Totara Product.
1.2 In this Agreement, unless the context otherwise requires:
1.2.1 time is of the essence, in all respects;
1.2.2 a reference to a “person” includes an individual, firm, company, corporation or unincorporated body of persons, or any state or government or any agency thereof (in each case, whether or not having separate legal personality), and a reference to a “company” includes a person;
1.2.3 reference to “dollars” and “$” refers to United States dollars (US$) exclusive of Taxes unless specifically stated otherwise;
1.2.4 the singular includes the plural and vice versa, where the context requires.
2.1 Initial Subscription Term: The initial Subscription Term will expire on the day immediately preceding the first, second, or third anniversary of the Commencement Date, as defined in your purchase and signed quote.
2.2 Extension: Customer may extend the initial Subscription Term for one (1) further Subscription Term/s on the same terms and conditions as this Agreement except for the Subscription Fee which shall be determined in accordance with clause 2.3 by giving written notice to Lambda no less than thirty (30) days prior to expiry of the initial Subscription Term.
2.3 Notice: We will provide you with written notice of the upcoming expiration date, which will include notice of the applicable Subscription Fee for the upcoming Subscription Term no less than sixty (60) days prior to the expiration of the then current Subscription Term.
2.4 Failure to renew: The failure to renew this Agreement will not affect your usage of your currently installed Totara Product but will cease any updates, maintenance or support services provided pursuant to this Agreement.
2.5 The term of this Agreement commences on the Commencement Date and ends on the last day of the last Subscription Term.
2.6 Customer agrees to be bound to any Lambda support descriptions of which it has been provided a copy by Lambda to the extent relevant to the performance of Customer’s obligations under this Agreement. Changes to the support descriptions will be effective only upon notice of such changes having been given by Lambda to Customer in accordance with the Agreement. If Customer reasonably believes that any changes to the support description after the effective date of this Agreement may affect Customer’s obligations or result in additional costs, Customer may terminate the Agreement or the then current Subscription Term by notice under clause 14 of the Agreement and Lambda shall refund to Customer on a pro rata per diem basis Customer unused prepaid fees. If there is a conflict or inconsistency between this Agreement and the terms and conditions of the support description, the terms and conditions of this Agreement shall prevail to the extent of such conflict or inconsistency. This Agreement prevails over any Lambda web site terms, contracts or policies.
3. SUBSCRIPTION FEES
3.1 Subscription Fees: On the Commencement Date you agree to pay to us the subscription fee as per your accepted signed quote.
3.2 Costs: If requested by us, you will reimburse us for all reasonable costs (including reasonable legal fees) associated with collecting overdue or dishonored payments by you that are more than thirty (30) days overdue except in the case of bona fide disputed payments.
3.3 Termination: If payment of fees is more than thirty (30) days overdue, we shall have the option to terminate this Agreement in accordance with clause 9 upon notice in writing to you except in the case of bona fide disputed payments.
3.4 Taxes: Subscription Fees are exclusive of any Taxes. Customer will pay to Lambda GST and PST if applicable.
4. SUBSCRIPTION SERVICES
4.1 Services Provided: Throughout each Subscription Term and subject to the terms and conditions of this Agreement, Lambda will provide to you:
(a) support in accordance with its support policy available at http://www.lambdasolutions.net/about/legal-information/technical-support-policy/, which is incorporated herein by this reference, and
(b) access and use rights to the Totara Product.
4.2 Totara Product Instances: Except with the prior written consent of Lambda, the Lambda Services (and any other services under this Agreement) are provided to you in respect of a single Production Instance of the Totara Product. Where you wish to deploy multiple Production Instances of the Totara Product, you will need to sign a separate Subscription Agreement or a Hosting and Support Agreement (as applicable). For the avoidance of doubt, multiple Non-Production Instances may be deployed in connection with a single Production Instance of the Totara Product.
4.3 Customer as end-user acknowledgment: You acknowledge and agree that we are providing the Lambda Services set out in clause 4.1 (and any other services under this Agreement) to you as an end-user and you will not provide any third party with those services, or the benefit (whether direct or indirect) of those services, and whether by way of resupply, resale or otherwise.
4.4 Self Help Support Resources: You agree that the users of the Totara Product under your control must first attempt to answer any questions or resolve any issues in relation to the operation of the Totara Product by using the following self-help resources:
4.4.2 the knowledge base website located at httpi/help.totaralms.com; and
4.4.3 community forums and resources located at httpi/community.totaralms.com.
4.5.1 “Confidential Information” means all information disclosed by either party to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including without limitation: (a) for you, all information transmitted to or from, or stored on, Lambda’s systems, (b) for Lambda, unpublished prices and other terms of Lambda Services, audit and security reports, product development plans, data center designs (including without limitation non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (c) for both parties, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by either party on its own, without reference to the other’s Confidential Information, or that becomes available to either party other than through breach of the Agreement or applicable law, will not be considered “Confidential Information” of the other party.
4.5.3 Data Retention / Server Reclaim Policy. Lambda makes no guarantees about retaining any data stored on Lambda’s systems or servers following expiration or termination of this Agreement. Lambda will typically delete such data seven days following termination of any Lambda Services by either you or Lambda. You will not have access to your data stored on Lambda’s systems or servers during a suspension or following a termination. As between Lambda and Customer, Customer owns all of its data processed, created or stored using the Lambda Services (the “Data”). Nothing in this Agreement will confer on Lambda any right of ownership or interest in the Data or the intellectual property rights therein. During the Term of this Agreement or a Subscription Term, whichever is shorter, Customer hereby grants Lambda a limited, non-exclusive, non-transferable license, without right of sublicense, to access, use, reproduce, electronically distribute, transmit, perform, format, display, store, archive, and index the Data for the purpose of supporting Customer’s use of the Lambda Services and providing Lambda Services to Customer. Subject only to the limited license expressly granted herein, Customer and its Users shall retain all right, title and interest in and to the Data and all intellectual property rights therein. For greater certainty, none of Lambda, its subcontractors, suppliers and personnel shall acquire any right or interest in or to the Data. Lambda acknowledges and agrees that all Data shall be held by Lambda in trust for Customer. All Data must be returned to Customer or securely disposed of, as selected by Customer, upon termination of the Agreement or at Customer’s request.
4.5.4 Protection of Personal Information. Without limiting the generality of any other provisions of this Agreement, Lambda will strictly comply with the Protection of Personal Information provisions set out as Appendix A to this Agreement. Lambda will defend, indemnify and save Customer and its representatives harmless from and against any and all claims and proceedings arising out of disclosure of or access to personal information (as defined in Appendix A) contrary to the terms of Appendix A. If any claim or proceeding is brought by a third party as a result of any disclosure of or access to personal information contrary to the Appendix A, Customer will promptly give notice to Lambda of such action. Upon receiving such notice, Lambda will defend Customer at Lambda’s own cost and expense; however, Customer will have the right, in its sole discretion, to its own legal counsel, and the fees for such legal counsel will also be paid for by Lambda.
5. NEW RELEASES OF THE SOFTWARE
We will provide to you any Maintenance Releases and New Version Releases that we make generally available to end users during the Subscription Term at no additional charge. Any Maintenance Releases or New Version Releases are part of the Totara Product and subject to the terms and conditions of this Agreement. The designation of a Totara Product release as a Maintenance Release or a New Version Release will be made by us in our reasonable discretion.5.2 Maintenance Release Installation:
5.2.1 We may designate a Maintenance Release as mandatory and may require a mandatory Maintenance Release to be applied as a pre-requisite for problem verification, diagnosis and/or resolution.
5.2.2 Once a mandatory Maintenance Release is made generally available, it must be applied to the environment within six (6) months or within such shorter time period as may be designated by us. After such period, all subsequent Maintenance Releases will be built on code line that assumes the mandatory Maintenance Release has been applied.
5.3 Support of Prior Releases: We will provide support for the most current Maintenance Releases made in relation to the current New Version Release and the last two New Version Releases immediately preceding that release.
5.4 Migration of Customizations and/or Modifications:
For customization and/or modifications:
5.4.1 All errors must be reproduced by us on such Totara Product before a patch or other fix will be considered and submitted to Totara;
5.4.2 If you have customized and/or modified Totara Product, support does not include migrating your customizations and/or modifications to any Maintenance Release or New Version Release, unless otherwise provided under a Statement of Work under which we support such customizations and/or modifications.
6. LICENCE AND INTELLECTUAL PROPERTY OWNERSHIP
6.1 License: Subject to the following terms, Lambda grants you a license to use the Totara Product software under the terms of the GNU General Public License v3 as published by the Free Software Foundation. The end user license agreement for each component of the software is located in the component’s source code, which permits you to copy, modify and redistribute the component, in both source code and binary code forms. This Agreement does not limit your rights under, or grant you rights that supersede, the license terms of any particular component.
6.2 Totara Intellectual Property: No right or license, express or implied, is granted to the Customer under this Agreement for the use of any Totara trade mark, logo, service mark or other Intellectual Property whether or not derived from the Totara Product including, without limitation, the distribution of any Totara Product Core Components or other Totara Intellectual Property.
6.3 Pre Existing Intellectual Property: All Intellectual Property that is owned by, or is proprietary to, a party to this Agreement at the Commencement Date of this Agreement, shall at all times remain owned by that party exclusively. Any modifications of, or additions to that pre-existing Intellectual Property shall automatically become the property of the owner of the pre-existing intellectual Property.
6.4 Open Source Assurance Programme: If any portion of the software comprising the Totara Product is found to infringe any third party intellectual property rights and Customer has complied with all of the terms of this Agreement, then for each Production Instance for which Customer is current in its Subscription Fees, Lambda will, at its expense and option: (i) obtain the rights necessary for Customer to continue to use the Totara Product consistent with this Agreement; (ii) modify the Totara Product so that it is non-infringing; or (iii) replace the infringing portion of the Totara Product with non-infringing code. The foregoing will not apply to claims arising from: the combination of the Totara Product with products or services not provided by Lambda; the modification of the Totara Product pursuant to specifications of Customer; the modification of the Totara Product other than as directed by Lambda; or use of the Totara Product in a manner not permitted or contemplated hereunder.
7. WARRANTY AND DISCLAIMERS
7.1 We will provide the services under this Agreement with the level of due care and diligence that might be expected from a provider of product maintenance and support services in respect of open source software.
7.2 As the Totara Product contains open source software, the only warranties in respect of the Totara Product, the Documentation and any covered works are as set out in the GNU General Public License v3. No representations or warranties are made by us in respect of the Totara Product, Documentation or any covered works in this Agreement. To the extent that any Maintenance Release or Error Correction which we create ourselves and provide to you pursuant to this Agreement is not a covered work pursuant to the GNU General Public License v3, we warrant that to the best of our knowledge it does not infringe the intellectual property rights of a third party.
7.3 Disclaimers: To the maximum extent permitted by applicable law all other warranties and representations not expressly stated in this Agreement are excluded, including, but not limited to any implied warranty of merchantability, non-infringement and fitness for a particular purpose. We do not guarantee that the use of the Totara Product and the services provided under this Agreement will not be interrupted or error free.
8.1 Termination for breach: A party shall be in default of this Agreement where:
8.1.1 it breaches, or fails to properly or promptly perform, any of its obligations (other than payment obligations) under this Agreement, and fails to remedy that failure within 20 Business Days after receiving written notice (inclusive of the date of receipt) from the other party requiring the failure to be remedied;
8.1.2 it breaches a material obligation under this Agreement, which is incapable of remedy;
8.1.3 it assigns, transfers or otherwise disposes of any right, interest, obligation or liability in contravention of this Agreement;
8.1.4 it is subject to an Insolvency Event; or
8.1.5 any monies due to be paid by the party pursuant to this Agreement are more than 30 days overdue.
8.2 Right to terminate on default: The non-defaulting party may terminate this Agreement immediately by written notice to the other if the other is in default as specified in clause 8.1.
8.3 Termination or limitation of services for abuse of support: At our sole discretion, we may terminate this Agreement, or limit the availability of product maintenance services, upon written notice to you, if, in our reasonable judgment, you are abusing the product support system. By way of example, and not by way of limitation, such abuse may include excessive requests for assistance unrelated to errors in the Totara Product or lack of cooperation with the reasonable requests of our personnel for error documentation.
8.4 Force Majeure: If a Force Majeure Event under clause 12 continues for more than 60 consecutive Business Days, or for an aggregate of 60 Business Days in any six month period, then the party not claiming the benefit of the Force Majeure Event will be entitled to terminate this Agreement.
9. EFFECT OF TERMINATION:
9.1 Effect of Termination by You: If you terminate this Agreement because we are in default, our sole and exclusive obligation will be to promptly refund that portion of the Subscription Fee actually paid by you that is proportional to the percentage of the Subscription Term remaining at the time termination is effective, unless otherwise provided in this Agreement.
9.2 Effect of Termination on use of Totara Product:
The termination of this Agreement will not affect your usage of your currently installed Totara Product but will cease any updates, maintenance or support services provided under this Agreement.
9.3 Obligations shall cease: Upon termination of this Agreement all further obligations of both of us under this Agreement will immediately cease, provided that:
9.3.1 neither party will be prevented from pursuing other remedies available including injunctive relief; and;
9.3.2 any rights and remedies of either party in relation to any breach of this Agreement occurring prior to the date of termination, or any rights of either party which have accrued prior to, or which arise out of or in connection with, such termination will not be prejudiced.
9.3.3 The provisions of clauses 10.1 to 10.6 inclusive shall survive such termination.
10.1 You shall indemnify, defend and hold us and our officers, directors, agents and employees harmless from and against all claims, suits, demands, actions, proceedings, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all third-party claims against us arising from or relating to:
10.1.2 any action or inaction by you or any of your contractors, agents or employees which caused or is alleged to have caused damage to the person or property of a third-party, including without limitation, third-party computer equipment.
10.2 Our Indemnity: We shall indemnify, defend and hold you harmless from and against all claims, suits, demands, actions, proceedings, judgments, penalties, damages, losses, liabilities, costs and expenses (including, without limitation, reasonable legal and expert witness fees) resulting from any and all third-party claims against you arising from or relating to:
10.2.1 the performance or non-performance of our obligations under this Agreement; and
10.2.2 any action or inaction by us or any of its contractors, agents or employees which caused or is alleged to have caused damage to the person or property of a third-party, including without limitation, third-party computer equipment.
10.2.3 a claim alleging that your use of the Totara Product Core Components infringes the Intellectual Property rights of a third party, provided that you will:
10.2.3.1 immediately give written notice of any claim or threatened claim (and in any event within fourteen(14) days of becoming aware of the claim) to us;
10.2.3.2 give us sole control of the defense and settlement of the claim; and
10.2.3.3 provide us with all reasonable information and assistance.
10.3 Mitigation: Lambda agrees with Customer that Lambda will not settle or compromise any third party claims against Customer without Customer’s prior written consent. Each of the parties must take reasonable steps to mitigate any claim for loss or damage it may take against the other under or arising out of this Agreement.
10.4 Cap: Except in the case of fraud or willful concealment or an indemnification or confidentiality obligation, the maximum aggregate liability of either Party under this Agreement shall not exceed the greater of:
10.4.1 one thousand dollars ($1,000 US$); or
10.4.2 the fees or commission, if any, received by such party from the other party for the twelve (12) month period preceding the occurrence of such liability.
10.5 Exclusion of indirect losses: In no event shall either Party be liable to the other for any indirect, consequential or special losses or damages (exemplary or otherwise) arising out of or in connection with the performance or nonperformance of its obligations under this Agreement except in respect of any obligation of confidentiality or an indemnification obligation.
10.6 Exclusions for each party: Except in respect of any obligation of confidentiality or an indemnification obligation or in the event of fraud or willful concealment, in no event will the measure of damages against any party for any breach of this Agreement, negligence or other action or contravention of any statute or law include, or be derived from:
extent that the breach is attributable to the prior default, negligence, misconduct or breach of the other party, its employees, or agents;10.6.2 any amounts for any indirect, consequential or punitive damages of any parties, including third parties; or10.6.3 a Force Majeure Event.
11. FORCE MAJEURE
11.1 Obligations suspended: Where either of us are unable, wholly or in part, by reason of a Force Majeure Event, to carry out any obligation under this Agreement and:
11.1.1 that party gives the other party immediate written notice of the nature and expected duration of, and the obligation affected by, the Force Majeure Event; and
11.1.2 that party uses all reasonable endeavors to:
188.8.131.52 mitigate the effects of the Force Majeure Event on that party’s obligations under this Agreement; and
184.108.40.206 perform that party’s obligations under this Agreement despite the Force Majeure Event, then that obligation is suspended so far as it is affected by the Force Majeure Event during its continuance.
12. DISPUTE RESOLUTION
12.1 Dispute: If any dispute arises between the parties out of or in connection with this Agreement (Dispute), either party may, by written notice to the other party, summon a meeting of the parties to the Dispute. The party claiming a Dispute shall, in its written notice to the other party, designate as its representative to attend the meeting a person with authority to settle the Dispute. The party who receives such written notice shall give notice to the other party in writing within five Business Days of receipt designating as its representative to attend the meeting a person with similar authority.
12.2 Negotiation: The persons designated as authorized representatives shall meet promptly as many times as necessary to discuss the matter and to negotiate in good faith to resolve the Dispute.
12.3 Escalation: If the Dispute is not resolved by the authorized representatives within fifteen (15) Business Days of a written notice first being given by one party to the other pursuant to clause 12.1.1, either party may seek any and all remedies available at law or at equity.
13.1 Service: Every notice or other communication given under or in connection with this Agreement will be in writing and addressed to the relevant party and delivered, posted by pre-paid registered mail, sent by electronic means (commonly known as email) to the address, or email address of that party. In the case of the Customer, that shall be the address or email address advised at the time Customer subscribed for the Totara Product (or such other address as may be notified to us in writing from time to time). Any notice to us shall be addressed to Lambda Solutions Inc.: 200 -110 West Hastings Street, Vancouver, BC, V6B 1G8, Canada.
13.2 Receipt: Every notice or other communication sent by prepaid letter will be deemed to have been received when delivered personally or three days after it has been put into the post.
13.3 Electronic communications: In the case of electronic transmission by email, a notice or other communication will be deemed to have been received at the time specified in the email transmission which was not returned as undeliverable or as containing any error.
14.1 Assignment: We may assign our rights or obligations under this Agreement, upon giving notice to you. You may only assign your rights or obligations under this Agreement, with our prior written consent (which may be given in our absolute discretion). Any change in control or of more than 50% shareholding in you (if you are a company) shall be deemed an assignment.
14.2 Compliance with laws: Each of us will, in performing our respective obligations under and in connection with this Agreement, comply with all relevant statutes and other laws.
14.3 Entire Agreement: Subject to any amendment in accordance with clause 15.4, this Agreement constitutes the entire agreement, understanding and arrangement (express and implied) between both of us relating to the subject matter of this Agreement and supersedes and cancels any previous agreement, understanding and arrangement relating thereto, whether written or oral. Any provision in any statute or other law that is inconsistent with this Agreement will not apply, to the extent that contracting out of that provision is permitted.
14.4 Variations: This Agreement may only be amended in a writing duly executed by authorized representatives of both parties.
14.5 Pay own costs: Except as otherwise provided in this Agreement, each of us will pay our own costs of, and incidental to, the negotiation, preparation, execution and enforcing, or attempting to enforce, this Agreement.
14.6 Non-solicitation: You agree that you will not during the term of this Agreement or for a period of one (1) year from the termination or end of this Agreement, whether for yourself or for any other person, solicit or approach and entice or endeavor to entice away any of our staff.
14.7 No waiver by action: Any delay, failure or forbearance by a party to exercise (in whole or in part) any right, power or remedy under, or in connection with, this Agreement will not operate as a waiver of such right, power or remedy.
14.8 Waiver to be in writing: The waiver of any breach of any provision of this Agreement will not be effective unless that waiver is in writing and is signed by the party against whom that waiver is claimed. A waiver of any breach shall not be, or be deemed to be, a waiver of any other or subsequent breach.
14.9 Governing Law and Jurisdiction: This Agreement and all matters arising out of or relating to this Agreement, will be governed by the laws of the Province of British Columbia and the laws of Canada applicable therein, without reference to conflicts of law provisions, and the parties irrevocably submit to the exclusive jurisdiction of the courts of British Columbia with respect to any legal action, suit or proceeding or any other matter arising out of or in connection with this Agreement.
IN WITNESS WHEREOF, the Parties have executed this Agreement as of the dates set out in your purchase quote.