Terms of Service
These Terms of Service were last updated on October 9, 2024.
These Terms of Service form an agreement between the customer named in the Order Form (“Customer”, “you” or “your”) and Mantle RevOps Inc. (“Mantle”, “we”, “us” or “our”) under which the Customer accesses and uses the applicable Mantle Solution and is entered into on the Effective Date. This Agreement includes any current or future Order Forms, and all such documents are incorporated by this reference. Mantle and Customer will be referred to together as the “Parties” and each a “Party”. Capitalized terms used in this Agreement have the meaning ascribed to them in the preamble or in this Section 14. This Agreement sets forth the terms and conditions that govern the provision and use of the Services.
BY USING MANTLE’S PRODUCTS (INCLUDING THE WEBSITE, AS DEFINED BELOW), CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS READ, ACCEPTS AND AGREES TO BE BOUND BY AND COMPLY WITH THE TERMS AND CONDITIONS SET OUT IN THESE TERMS OF SERVICE, AS AMENDED FROM TIME TO TIME IN ACCORDANCE WITH SECTION 13(m). IF CUSTOMER DOES NOT ACCEPT AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, CUSTOMER WILL IMMEDIATELY CEASE ANY FURTHER USE OF MANTLE’S PRODUCTS. CUSTOMER REPRESENTS AND WARRANTS TO MANTLE THAT CUSTOMER HAS THE CAPACITY TO ENTER INTO THIS LEGALLY BINDING AGREEMENT. IF CUSTOMER IS USING THE MANTLE’S PRODUCTS ON BEHALF OF ANOTHER PERSON, CUSTOMER HEREBY REPRESENTS AND WARRANTS TO MANTLE THAT CUSTOMER HAS THE AUTHORITY TO BIND SUCH PERSON TO THESE TERMS OF SERVICE.
1. Mantle Solution
a) Provisioning of Mantle SaaS Services. Subject to Customer’s and its Permitted Users’ compliance with the terms and conditions of this Agreement (including any Order Form), Mantle will make the applicable Mantle SaaS Services available to Customer on the terms and conditions set out in this Agreement during the Term. Customer may access and use the Mantle SaaS Services solely for Customer’s internal business purposes.
b) Restrictions on Use. Customer and Customer’s Affiliates will not, and will not permit any other person to, access or use the applicable Mantle’s Products except as expressly permitted by this Agreement, including in an Order Form. Without limiting the generality of the foregoing, Customer will not itself, and will not permit others to: (i) sub-license, sell, rent, lend, lease or distribute the Mantle’s Products or any Intellectual Property Rights therein, or otherwise make the Mantle’s Products available to any third parties other than Permitted Users; (ii) use the Mantle Solution for personal, family or household purposes; (iii) use or access Mantle’s Products: (A) in violation of any Applicable Laws or Intellectual Property Right; (B) for any High Risk Activities; (C) in a manner that threatens the security or functionality of the Mantle’s Products; or (D) for any purpose or in any manner not expressly permitted in this Agreement; (iv) use or access Mantle’s Products to create, collect, transmit, store, use or process any Customer Property that: (A) contains any Personal Information other than Account Information; (B) Customer does not have the lawful right to create, collect, transmit, store, use or process; (C) violates any Applicable Laws, or infringes, violates or otherwise misappropriates the Intellectual Property Rights or other rights of any third party (including any moral right, privacy right or right of publicity); or (D) contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data; (v) copy or Modify the Mantle’s Products; (vi) reverse engineer, de-compile or disassemble Mantle’s Products or any part of them; (vii) access or use Mantle’s Products for purposes of benchmarking or competitive analysis of such Mantle’s Products; (viii) access or use Mantle’s Products for the purpose of building a similar or competitive product or service; (ix) remove or obscure any proprietary notices or labels on Mantle’s Products, including brand, copyright, trademark and patent or patent pending notices; (x) perform any vulnerability, penetration or similar testing of Mantle’s Products; or (xi) use Mantle’s Products to circumvent the intended features, functionality or limitations of Mantle’s APIs. Customer and Customer’s Affiliates will include the foregoing restrictions on use or restrictions on use substantially similar to those set out in this 1(b) in all agreements with Customer’s clients pursuant to which Customer’s clients access, analyze, process, store, or use the Mantle SaaS Services, Deliverables or Documentation.
d) Subcontracting. Mantle may engage third parties to provide the Mantle Solution or any part of it, without Customer’s consent and without prior notice to Customer. The delegating or subcontracting of all or any part of Mantle’s obligations set out in this Agreement will not relieve Mantle from any obligation or liability under this Agreement.
e) Customer’s Affiliates. Mantle may provide the Mantle Solution or any part of the Mantle Solution, and grant the rights under this Agreement, to any Affiliate of Customer in accordance with this Agreement and as may be directed by Customer from time to time. If any Customer’s Affiliate is receiving any part of the Mantle Solution or is granted any rights under this Agreement, a reference to Customer will refer to such Customer’s Affiliate to the extent that such term or condition applies to such Customer’s Affiliate’s receipt of the Mantle Solution or grant of such rights. Mantle agrees that Customer may disclose the Agreement and Mantle’s Confidential Information to the extent required in order to inform each such other Customer’s Affiliate of the nature and scope of Mantle’s Products, the Mantle Solution or grant of rights hereunder and otherwise in connection with such other Affiliate’s receipt of Mantle’s Products, the Mantle Solution or grant of such rights. Customer will remain responsible for all obligations of such any Customer’s Affiliate as if such Mantle Solution were provided to Customer.
f) Professional Services; Change Management.
(i)Professional Services. Mantle will use commercially reasonable efforts to perform the Professional Services if set forth in an applicable Order Form pursuant to the Professional Services Schedule and these Terms of Service.
(ii)Change Management. In the event that either Party requests a change to the Mantle Solution, the Parties will follow the change control procedure set out in Schedule B to these Terms of Service.
2. Ownership; Reservation of Rights
a) Customer property.
(i) Subject to the rights granted in this Section 2, Customer retains all right, title and interest including Intellectual Property Rights in and to Customer Property.
(ii) Customer grants to Mantle: (A) a nonexclusive, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Section 13(c)), sublicensable, and fully paid-up licence during the Term to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Property solely to provide the Mantle Solution (for clarity, Mantle does not and will not sell Customer Property, including Customer Data, to any third parties); and (B) a nonexclusive, perpetual, worldwide, royalty-free, irrevocable, non transferable (except as permitted in Section 13(c)), sublicensable, and fully paid-up licence to access, collect, use, process, store, disclose, transmit, transfer, copy, Modify and display Customer Property to: (1) improve and enhance the Mantle Solution and Mantle’s other offerings; (2) if set forth in an applicable Order Form, benchmark against other applications and share results with Customer; and (3) produce or generate information and other data in an anonymous or aggregated form that is collected or generated by the Mantle Solution related to how individual users interact with the Mantle Solution, including frequency and duration of usage, specific features or functions accessed, user preferences and patterns of behavior, but expressly excluding any Personal Information (such data, information and materials, the “Aggregated Data”). Mantle may use, process, store, disclose, transmit, transfer and display the Aggregated Data for any purpose and without restriction or obligation to Customer of any kind.
(b) Mantle Property. Mantle or its licensors retain all right, title and interest including Intellectual Property Rights in and to: (i) the Mantle Solution; (ii) Mantles’ API, Mantle Software and Baseline Models; (iii) anything developed or delivered by or on behalf of Mantle in accordance with the terms of this Agreement including any Customer GenAI Model, API Keys, Deliverables, Reports, Documentation, Aggregated Data and any metadata that is generated by Mantle’s Products; and (iv) any Modifications to the foregoing (collectively, “Mantle Property”). All rights not expressly granted by Mantle to Customer under this Agreement are reserved.
(c) Customer-Owned Deliverable.
(i) Mantle: (A) hereby irrevocably assigns and transfers to Customer in perpetuity; (B) agrees to irrevocably assign and transfer to Customer in perpetuity; and (C) agrees to cause all authors and any other personnel of Mantle to irrevocably assign and transfer to Customer in perpetuity, as and when created, all right, title and interest, including all Intellectual Property Rights, throughout the world in and to all Customer-Owned Deliverables. Mantle will cause all authors and any other personnel of Mantle to irrevocably waive, for the benefit of Customer and its respective successors, assigns, licensees and contractors, their respective moral rights (and any similar rights to the extent that such rights exist and may be waived in each and any jurisdiction throughout the world) in and to Customer-Owned Deliverables.
(ii) Mantle grants to Customer (or shall procure the direct grant of) a fully paid-up, worldwide, non-exclusive, royalty-free, perpetual and irrevocable licence to use, copy, modify sub-license, distribute, display and otherwise engage Mantle Property contained in any Customer-Owned Deliverables and any Mantle Property reasonably necessary for the use of the Customer-Owned Deliverables to enable the full use and benefit of the Mantle SaaS Services.
(d) Feedback. To the extent that Customer or any Permitted User submits ideas, suggestions, documents, or proposals regarding Mantle’s Products to Mantle (“Feedback”), Customer acknowledges and agrees that: (i) the Feedback does not contain confidential or proprietary information and Mantle is not under any obligation of confidentiality with respect to the Feedback; and (ii) Mantle will be entitled to use, commercialize or disclose (or to choose not to use, commercialize, or disclose) such Feedback for any purpose, in any way, in any manner, and to anyone worldwide without any compensation or reimbursement of any kind to Customer for such use.
(e) Access Right and License Grant to Customer. Subject to the terms and conditions of this Agreement, Mantle hereby grants to Customer: (i) a limited, revocable, non-exclusive, non-sublicensable (except for permitted use by Permitted Users), non-transferable (except as permitted in Section 13(c)) right during the applicable Service Term to allow its Permitted Users to access and use the Mantle SaaS Services in accordance with the Documentation, solely for Customer’s and Permitted Users’ internal use; (ii) a limited, revocable, non-exclusive, non-sublicensable (except for permitted use by Permitted Users), non-transferable (except as permitted in Section 13(c)) license during the applicable Service Term to access and use Mantle’s API (if access to Mantle’s API is provided to Customer pursuant to any Order Form) solely for the purpose of facilitating the transfer of information from Customer’s systems to the Mantle SaaS Services; and (iii) a revocable, non-exclusive, non-sublicensable (except for permitted use by Permitted Users), non-transferable (except as permitted in Section 13(c)) limited license during the Service Term to use Mantle’s Materials, Deliverables, and Reports solely for the purpose of use and receipt of the Services. Customer hereby agrees to ensure that all copyright, trademark and other proprietary notices of Mantle affixed to or displayed on Mantle’s Products (including the Mantle SaaS Services) will not be removed or modified. Customer will not use any name, title or expression that, in the opinion of Mantle, so nearly resembles any Mantle trademarks that such use may lead to confusion or uncertainty on the part of the public.
(f) GENAI OUTPUTS. AS BETWEEN MANTLE AND CUSTOMER, CUSTOMER WILL HAVE FULL OWNERSHIP OF ALL RIGHTS IN CUSTOMER INPUTS AND GENAI OUTPUTS (AND ALL DERIVATIVE WORKS THEREOF) OTHER THAN ANY MANTLE PROPERTY EMBEDDED IN SUCH GENAI OUTPUTS. NOTWITHSTANDING THE FOREGOING, CUSTOMER ACKNOWLEDGES AND AGREES THAT CERTAIN JURISDICTIONS DO NOT RECOGNIZE INTELLECTUAL PROPERTY OWNERSHIP IN GENAI OUTPUTS AND AS A RESULT MANTLE MAKES NO REPRESENTATION OR WARRANTY THAT MANTLE WILL HAVE FULL OWNERSHIP OF SUCH GENAI OUTPUTS.
3. Mantle’s APIs
(a) Mantle’s APIs. If Customer is provided with access and use of the Mantle’s API in the Order Form, then:
(i) Customer will receive an API key from Mantle (each, an “API Key”). Customer acknowledges that such API Keys are Mantle’s Confidential Information and will not share Customer’s API Keys with any third party without Mantle’s prior consent. In addition, Mantle may revoke Customer’s API Keys any time without Customer’s consent.
(ii) Customer may incorporate Mantle’s APIs into Customer’s products and services and otherwise use Mantle’s APIs in connection with its internal business purposes, provided such incorporation and use are done in accordance and in compliance with this Agreement and the related Documentation.
(iii) Unless otherwise set out in an Order Form, the number of calls Customer makes to Mantle’s APIs during any given period may be limited, at Mantle’s sole discretion, based on various factors that include the manner in which Customer makes calls to Mantle’s APIs and the anticipated volume of use associated with Customer.
(iv) Mantle reserves the right to change Mantle’s APIs and related Documentation at any time and without notice. Customer acknowledges and understands that these changes may require Customer to make changes to Customer Applications at Customer’s own cost and expense.
(v) Notwithstanding the foregoing, Mantle retains the right, at Mantle’s sole discretion, to suspend or revoke Customer’s or its Permitted Users’ access to Mantle’s APIs, at any time and for any reason, including for: (A) violation of the terms of this Agreement, or any other responsible use guidelines Mantle provides to Customer or are posted on the website; (B) Customer’s use of the Mantle’s APIs contrary to the related Documentation; (C) scheduled maintenance; or (D) any emergency security concerns.
(vi) Customer acknowledges and agrees that Mantle may monitor Customer’s or its Permitted Users’ use of Mantle’s APIs and that Customer will not block or otherwise interfere with Mantle’s monitoring.
4. Privacy
(a) To the extent any Customer Property includes Personal Information other than Account Information:
(i) the Parties acknowledge and agree that as between the Parties, Customer is accountable (as an “accountable entity” or a “controller”) under Privacy Laws for Customer Personal Information;
(ii) Customer and Mantle will each comply with the Privacy Laws that apply to such Party’s processing of Customer Personal Information; and
(b) Mantle will:
(i) only use, disclose and otherwise process Customer Personal Information for the purposes of fulfilling Mantle’s obligations and exercising its rights in accordance with this Agreement and as otherwise instructed by Customer in writing from time to time;
(ii) implement commercially reasonable physical, technical and administrative measures designed to safeguard Customer Personal Information against loss, theft, damage, or unauthorized or unlawful access, use or disclosure;
(iii) notify Customer as soon as reasonably practicable upon becoming aware of a breach of the security safeguards outlined in Section 4(c)(ii) above that results in the loss, theft, unauthorized access to or disclosure of Customer Personal Information (“Security Incident”), and provide reasonably requested assistance to Customer in responding to the Security Incident;
(iv) notify Customer as soon as reasonably practicable of any request received from a Permitted User relating to the Permitted User’s right to access, correct, or withdraw consent to the processing of, their Customer Personal Information, and provide reasonable assistance to Customer in responding to the request; and
(v) upon the termination of this Agreement, Mantle will comply with the retention and destruction requirements set out in Section 12(c) of this Agreement.
5. Third Party Licensed Technology
If the Mantle Solution contains or requires the use of Third Party Licensed Technology, Customer will accept and comply with the license terms applicable to such Third Party Licensed Technology. If Customer does not agree to abide by the applicable license terms for any such Third Party Licensed Technology, then Customer should not install, access, or use such Third Party Licensed Technology. Any acquisition by Customer of Third Party Licensed Technology, and any exchange of data between Customer and any such provider of Third Party Licensed Technology is solely between Customer and the applicable Third Party Licensed Technology provider. Mantle does not warrant or support Third Party Licensed Technology, even if they are designated by Mantle as “certified” or otherwise recommended. Mantle cannot guarantee the continued availability of Third Party Licensed Technology features, and may cease providing them without entitling Customer to any refund, credit, or other compensation, if for example and without limitation, the provider of a Third Party Licensed Technology ceases to make the Third Party Licensed Technology available for interoperation or otherwise in connection with the corresponding service features in a manner acceptable to Mantle. Mantle is not responsible for any disclosure, modification or deletion of Customer Property resulting from access to any Customer Property by such Third Party Licensed Technology, their providers or Permitted Users (includes any End Customers).
6. Customer User Account; Customer Responsibilities
(a) Customer User Account. In order for Customer to access and use the Mantle SaaS Services and other applicable Mantle’s Products, Mantle will issue one or more Administrator User Accounts to Customer that provides the Administrator User with the capability to create Employee User Accounts and Customer User Accounts for its other Permitted Users.
(b) Customer Responsibilities.
(i) Customer will ensure that a Permitted User only uses Mantle’s Products through the Permitted User’s assigned Customer User Account. Customer will not allow any Permitted User to share a Customer User Account with any other person. Customer will promptly notify Mantle of any actual or suspected unauthorized use of Mantle’s Products. Mantle reserves the right to suspend, deactivate, or replace a Customer User Account if it determines that a Customer User Account may have been used for an unauthorized purpose;
(ii) as between Customer and Mantle, Customer will solely be responsible for: (A) the accuracy, quality and legality of Customer Property, tokens or any materials or content provided to Mantle or via the Mantle Solution, the means by which Customer acquired Customer Property, tokens or any materials or content provided to Mantle or via the Mantle Solution, Customer’s use of Customer Property with Mantle’s Products, and the interoperation of any third party products or systems with which Customer uses Mantle’s Products; (B) providing, at its own expense, all network access to Mantle’s Products, including, without limitation, acquiring, installing and maintaining all telecommunications equipment, hardware, software and other equipment as may be necessary to connect to, access and use Mantle’s Products; (C) properly configuring and using Mantle’s Products and taking its own steps to maintain appropriate security, protection and backup of its infrastructure (including without limitation any databases, servers, and any other protocol) which may include the use of encryption technology to protect such infrastructure from unauthorized access and routine archiving of such infrastructure; (D) using Mantle’s Products in accordance with this Agreement and Applicable Laws; (E) identifying and authenticating all Permitted Users and for ensuring only Permitted Users access and use Mantle’s Products; (F) its Affiliates and Permitted Users’ compliance with this Agreement and compliance with any applicable terms and conditions for Third-Party Services and any breach by Customer, its Affiliates or Permitted Users shall be deemed a breach by Customer, without limiting the generality of the foregoing and where appropriate in the circumstances, this may include Customer taking steps to ensure that all Permitted Users of Mantle’s Products are contractually bound to terms and conditions with Customer that are no less restrictive or protective of Mantle’s rights than those set forth in this Agreement; and (G) ensuring that none of the Permitted Users bring or maintain any Claim against Mantle, its shareholders, employees, officers, directors, Affiliates, agents, contractors, successors, and assigns in respect of any matter related to or in connection with the subject matter of this Agreement. Customer will be liable for any breach by a Permitted User of this Agreement; and
(iii) to the extent Customer or its Permitted Users uses the Mantle SaaS Services to send electronic communications, including commercial electronic messages (“CEMs”) as such term is defined under Anti-Spam Laws, or causes or permits the sending of CEMs, Customer represents, warrants and agrees that it will, and will cause all Permitted Users to:
(A) fully comply with all applicable notice and consent requirements under Anti-Spam Laws and Privacy Laws;
(B) fully comply with all applicable message form, content, unsubscribe and other requirements under Anti-Spam Laws and Privacy Laws;
(C) give effect to any unsubscribe request within the time period required by Anti-Spam Laws;
(D) ensure that email or other electronic addresses are not harvested through automated means;
(E) ensure that transmission data in a CEM is not altered so that the message is delivered to a destination other than or in addition to that specified by the sender;
(F) ensure that the sender information, subject matter information or locator of an electronic message, or content within an electronic message, sent (or caused or permitted to be sent) by Customer is not false or misleading in any respect;
(G) maintain policies and procedures to ensure compliance with Anti-Spam Laws and Privacy Laws; and
(H) retain all necessary records to demonstrate compliance with Anti-Spam Laws and Privacy Laws, including evidence of express consent and records of unsubscribe requests and actions.
7. Support Services
Customer will generally have access to Mantle’s support services in relation to the Mantle SaaS Services set forth in an applicable Order Form (“Support Services”).
8. Fees and Payment
(a) Fees. Customer will pay to Mantle the fees described in any Order Form (the “Fees”). Unless otherwise noted on an Order Form or otherwise specified in this Agreement: (i) all Fees are identified in the currency set forth in the Order Form; (ii) Fees are non-cancelable and non-refundable; and (iii) quantities purchased cannot be decreased during the relevant subscription term. If Customer’s use of Mantle’s Products exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Mantle reserves the right to change the Fees and institute new charges on each anniversary of the Effective Date upon providing not less than 30 days prior notice to Customer. Mantle will prepare and send to Customer, at the then-current contact information on file with Mantle, an invoice for any Fees that have become due and payable. Unless otherwise expressly stipulated in an invoice, Customer will pay all invoiced amounts within 30 calendar days of the invoice date. If Customer believes Mantle has charged Customer incorrectly, Customer must contact Mantle no later than forty-five (45) days after having been charged by Mantle in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute. Customer may not withhold or setoff any amounts due under this Agreement. If Customer fails to make any payment when due, without limiting Mantle’s other rights and remedies, Mantle may: (i) charge interest at the rate of one and a half percent (1.5%) compounded monthly (19.56% annually), or the maximum legal rate (if less), plus all expenses of collection, until fully paid; and (ii) except for Fees subject to a reasonable and good faith dispute, if a payment is more than thirty (30) days past due and Mantle has provided at least ten (10) days written notice to Customer, Mantle may in its sole discretion either: (A) suspend, in accordance with Section 1(c), Customer’s and all other Permitted Users’ access to any portion or all of Mantle Solution until such amounts are paid in full; or (B) terminate the Agreement immediately on notice (which may be sent by electronic means to the account administrator through the applicable Customer User Account), without incurring any obligation or liability to Customer or any other person by reason of such suspension or termination.
(b) Taxes. The Fees do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer will be responsible for and pay all applicable taxes, duties, tariffs, assessments, export and import fees or similar charges (including any applicable interest and penalties) payable in connection with the transactions contemplated by this Agreement, other than taxes based on the net income or profits of Mantle. If Mantle has a legal obligation to pay or collect taxes for which Customer is responsible under this Agreement, the appropriate amount shall be computed based on Customer’s address listed in the Order Form, and invoiced to and paid by Customer, unless Customer provides Mantle with a valid tax exemption certificate authorized by the appropriate taxing authority.
(c) Suspension. Any suspension of the Mantle’s Products by Mantle pursuant to this Agreement will not excuse Customer from its obligation to make payments under this Agreement.
(d) Payment Processor. Payment and collection of Fees may be enabled through and executed by a third-party payment processor. Transaction fees associated with the individual payment and collection of Fees or amounts under this Agreement are as outlined in the pricing plan provided to Customer. Customer may be required to agree to terms and conditions as required by such third-party payment processor from time to time. Prior to using Services and any components thereof, Customer must have all applicable such third-party payment processor’s terms and conditions in effect. By using Services or any component thereof, Customer acknowledges it must be in full compliance with the terms and conditions of such third-party payment processor and be in good standing with such third party payment processor.
9. Confidential information
(a) Definitions. For the purposes of this Agreement, a Party or any of its Affiliates, customers, employees, licensors or suppliers receiving Confidential Information will be “Recipient”, the Party disclosing such information will be “Discloser” and “Confidential Information” of Discloser means any and all information of Discloser or any of its Affiliates, and in the case of Mantle, any of its service providers, licensors or customers that has or will come into the possession or knowledge of Recipient in connection with or as a result of entering into this Agreement, including information concerning Discloser’s past, present or future customers, suppliers, technology or business, Mantle Property, this Agreement and where Discloser is Customer, Customer’s Confidential Information includes Customer Property. Notwithstanding the foregoing, except with respect to Personal Information, Confidential Information does not include any information that: (a) is publicly available prior to it being obtained by or becoming known to Recipient, or that subsequently becomes publicly available through no breach of this Agreement by Recipient; (b) Recipient can demonstrate (through written records) was known to it prior to it being obtained by or becoming known to Recipient in connection with or as a result of entering into this Agreement; (c) becomes known to Recipient from a third party, where Recipient had no reason to believe that such third party had any obligation of confidence with respect to such information, but only until Recipient subsequently comes to have reason to believe that such information was subject to an obligation of confidence; or (d) Recipient can demonstrate (through written records) was developed independently by it or by individuals employed or engaged by Recipient who did not have any access to, or the benefit of, the Confidential Information of Discloser.
(b) Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times following the Term it will: (i) not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its own personnel and Permitted Users (if Recipient is Customer), or its and its Affiliate’s employees, contractors, subcontractors, advisors, consultants, officers, directors, partners, shareholders, agents and their respective successors or permitted assigns (if Recipient is Mantle), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the Services, who are informed of the confidential nature of the Confidential Information, who are directed to hold the Confidential Information in confidence and who agree in writing, or are otherwise legally bound, to comply with confidentiality obligations in respect of such Confidential Information that are no less stringent than the provisions of this Agreement; (ii) not use Confidential Information of Discloser or permit it to be accessed or used for any purpose except to exercise its rights or perform its obligations under this Agreement; (iii) not alter or remove from any Confidential Information of Discloser any proprietary legend; and (iv) maintain the Confidential Information of Discloser in strict confidence, which will include taking measures to protect the confidentiality and security of such Confidential Information using a reasonable standard of care, and no less than the standard of care taken to protect its own Confidential Information of similar sensitivity.
(c) Exceptions to Confidentiality. Notwithstanding Section 9(b), Recipient may disclose Discloser’s Confidential Information: (i) only if and to the extent legally compelled or required by a Governmental or Regulatory Authority, provided that Recipient must first: (A) provide Discloser with prompt prior written notice of such compelled disclosure (except where prohibited by Applicable Laws from doing so) to give Discloser the opportunity to oppose such disclosure; and (B) cooperate fully with Discloser in protecting against or limiting any such disclosure, including obtaining a protective order narrowing the scope of such disclosure and use of the Confidential Information. Thereafter, Recipient may disclose the Confidential Information of Discloser, but only to the extent required and subject to any protective order that applies to such disclosure; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Mantle, to potential assignees, acquirers or successors of Mantle if and to the extent such persons need to know such Confidential Information in connection with a potential sale, merger, amalgamation or other corporate transaction involving the business or assets of Mantle.
(d) Injunction and other equitable relief. Each of the Parties acknowledge that disclosure of Discloser’s Confidential Information or any other breach of this Section 9 may cause serious and irreparable damage and harm to Discloser and that remedies at law may be inadequate to protect against breach of this Agreement, and each Party agrees that Discloser may seek injunctive relief for any breach of the provisions of this Section 9 and to the specific enforcement of the terms of this Section 9, in addition to any other remedy to which Discloser would be entitled.
(e) Return or Destruction. Upon written request by a Discloser or upon the termination or expiration of this Agreement, each Party will promptly return to the other Party or destroy all Confidential Information (excluding any Customer Personal Information which is addressed in Section 4(c)(v) and other Customer Data which is addressed at Section 12(c)(iv)) of the other Party in its possession or control within a reasonable amount of time in accordance with Recipient’s data destruction practices. Notwithstanding the foregoing, Mantle may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 9. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 9.
2. Warranties; Disclaimer; Indemnity
(a) Customer Warranties. Customer represents, warrants, and covenants to Mantle that: (i) Customer has obtained and provided, and will continue to obtain and provide, all necessary consents, rights and notices, and otherwise has and will continue to have all necessary authority in and relating to the Customer Data (including Customer Personal Information), for Mantle to perform its obligations and exercise its rights under this Agreement in compliance with Applicable Laws, including Privacy Laws and Anti-Spam Laws, and without infringing, misappropriating or otherwise violating any Intellectual Property Rights or other rights of any third party, and will inform Mantle immediately if any such consents, rights or authority are withdrawn or can no longer be relied upon; (ii) Customer will not permit any Permitted User to access and use the Mantle SaaS Services or other Mantle Property from Russia, China, or any country: (A) subject to any embargo or sanction by the United States or Canada (collectively, the “Embargoed Countries”); or (B) on the U.S. Department of the Treasury’s list of Specially Designated Nationals, any other restricted party lists (existing now or in the future) identified by the Office of Foreign Asset Control, the U.S. Department of Commerce Denied Persons List or Entity List, Canada control lists or any other restricted party lists (collectively, “Restricted Party Lists”); (iii) it will: (A) only send or cause or permit to be sent CEMs related to the Mantle SaaS Services in compliance with Anti-Spam Laws, and, without limiting the foregoing, only to recipients from whom Customer has obtained all necessary consents and provided all necessary notices and otherwise has all necessary authority as required by and in compliance with Applicable Laws, including Anti-Spam Laws, and (B) not send or cause or permit to be sent any CEMs on behalf of Mantle or that a recipient would reasonably believe have been sent on behalf of Mantle; and (iv) Customer will comply with Section 13(e) (Export Restrictions). Customer acknowledges and agrees that it (and not Mantle) will be the sender of any commercial electronic messages sent pursuant to this Agreement. Any template, sample or other notices provided to Customer by Mantle pursuant to this Agreement or otherwise are for reference only and Mantle does not represent that such templates, samples or notices are sufficient to meet Customer’s obligations under Applicable Laws.
(b) Mantle Warranties. Mantle represents and warrants that: (i) it has the right to provide the Mantle SaaS Services in accordance with the Documentation; (ii) the media on which any part of the applicable Mantle SaaS Services will be delivered by Mantle is free from all computer viruses, worms, logic bombs and malicious code (provided that this warranty does not extend to any malicious code or virus introduced into the Mantle SaaS Services by the Customer); and (iii) all Professional Services will be provided by Mantle in a professional and workmanlike manner. In the event of a breach of the warranty in Sections 10(b) (i)-(ii), as Customer’s sole and exclusive remedy and Mantle’s sole and exclusive liability, Mantle will provide Support Services. In the event of a breach of the warranty in Section 10(b) (iii), as Customer’s sole and exclusive remedy and Mantle’s sole and exclusive liability, Mantle will reperform the Professional Services as provided in the applicable Order Form. Notice of breaches of this warranty in Sections 10(b) (i)-(ii) will be made through Mantle’s current error reporting system as set out in the applicable Order Form and notices of breaches of any other warranty in Section 10(b) will be made in accordance with Section 13(a) (Notices). FOR GREATER CERTAINTY, AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE REMEDIES (IF ANY) SET FORTH HEREIN AND IN THE APPLICABLE ORDER FORM WILL BE THE CUSTOMER’S SOLE REMEDY AND MANTLE’S SOLE LIABILITY FOR BREACH OF THE WARRANTY IN SECTION 10(B).
(c) DISCLAIMERS. MANTLE DOES NOT WARRANT THAT MANTLE’S PRODUCTS WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF MANTLE’S PRODUCTS EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT. MANTLE’S PRODUCTS (OR ANY PART OF THEM), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY MANTLE TO CUSTOMER ARE PROVIDED “AS IS” AND “AS AVAILABLE”. ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY LICENSED TECHNOLOGY IS STRICTLY BETWEEN CUSTOMER AND THE THIRD PARTY.
TO THE EXTENT PERMITTED BY APPLICABLE LAWS, MANTLE HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, MANTLE EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF MANTLE’S PRODUCTS (OR ANY PART OF THEM), IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.
WITHOUT LIMITING THE FOREGOING, CUSTOMER IS RESPONSIBLE FOR IMPLEMENTING SAFEGUARDS TO PROTECT THE SECURITY AND INTEGRITY OF ITS AND PERMITTED USERS’ COMPUTER SYSTEM AND ANY CUSTOMER PROPERTY. MANTLE DOES NOT GUARANTEE OR WARRANT THAT ANY COMPONENT OF MANTLE’S PRODUCTS OR ANY OTHER OF MANTLE PROPERTY IS COMPATIBLE WITH CUSTOMER’S COMPUTER SYSTEM OR THAT MANTLE’S PRODUCTS OR ANY LINKS FROM ANY COMPONENT OF MANTLE’S PRODUCTS, WILL BE FREE OF DISABLING DEVICES. MANTLE RESERVES THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR OR TO TAKE ANY ACTION REGARDING DISPUTES BETWEEN CUSTOMER AND ANY OTHER USER AND SHALL HAVE NO LIABILITY FOR CUSTOMER’S (OR ITS PERMITTED USERS’) INTERACTIONS OR ANY DISPUTES WITH OTHER USERS OR FOR ANY USER’S ACTION OR INACTION. CUSTOMER IS SOLELY RESPONSIBLE FOR ITS CONDUCT ON MANTLE’S PRODUCTS AND ITS (END CUSTOMERS OR ITS PERMITTED USERS’) INTERACTIONS WITH OTHER USERS. CUSTOMER UNDERSTANDS AND AGREES THAT CUSTOMER, NOT MANTLE, ARE FULLY RESPONSIBLE FOR ANY CUSTOMER DATA AND OTHER CUSTOMER PROPERTY THAT CUSTOMER, PERMITTED USERS INCLUDING OR ANY END CUSTOMERS SUBMIT OR CONTRIBUTE, AND CUSTOMER IS FULLY RESPONSIBLE AND LEGALLY LIABLE, INCLUDING TO ANY THIRD PARTY, FOR SUCH CONTENT AND ITS ACCURACY. MANTLE IS NOT RESPONSIBLE OR LEGALLY LIABLE TO ANY THIRD PARTY FOR THE TOKENS SHARED WITH US BY CUSTOMER OR ITS PERMITTED USERS, CONTENT OR ACCURACY OF ANY CUSTOMER PROPERTY SUBMITTED BY CUSTOMER, PERMITTED USERS OR ANY END CUSTOMERS OR BY ANY OTHER PERMITTED USER, END CUSTOMERS OR USER OF THE MANTLE SOLUTION OR ANY OTHER MANTLE’S PRODUCTS.
CUSTOMER UNDERSTANDS THAT THE NATURE OF AI MODELS IS NOT INTENDED, AND CANNOT BE, RELIED UPON WITHOUT INDEPENDENT VERIFICATION. ACCORDINGLY, CUSTOMER AGREES THAT IT WILL INDEPENDENTLY VALIDATE AND INSTRUCT ITS PERMITTED USERS TO INDEPENDENTLY VALIDATE THE RESULTS OF MANTLE’S PRODUCTS AND APPLICABLE SERVICES, INCLUDING ALL GENAI OUTPUTS OR OTHER OUTPUTS, BEFORE RELYING ON SUCH RESULTS AND GENAI OUTPUTS AND WILL ENSURE THAT ALL PERSONS WHOM IT SHARES SUCH RESULTS AND GEN AI OUTPUTS OR OTHER OUTPUTS, WITH UNDERSTANDS SUCH LIMITATIONS.
(d) Customer Indemnity. Customer will defend, indemnify and hold harmless Mantle, its employees, officers, directors, Affiliates, agents, contractors, successors, and assigns (each, a “Mantle Indemnitee”) from and against any and all Losses incurred by a Mantle Indemnitee arising out of or relating to any Claim by a third party (other than an Affiliate of a Mantle Indemnitee) that arise from or relate to: (i) Customer Property; (ii) Customer’s breach of Section 1(b)), Section 6(b), Section 10(a) or Section 13(e); (iii) Customer’s and Permitted Users’ use of Mantle’s Products, including products or services Customer develops or offers in connection with Mantle’s Products; (iv) Customer’s breach or violation of Applicable Law; or (v) use of Mantle’s Products (or any part thereof) by Customer or any Permitted User in combination or integration with any third party software, application or service. Customer will fully cooperate with Mantle in the defense of any Claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such Claim without the prior written consent of Mantle.
(e) Mantle Indemnity. Mantle will defend, indemnify and hold harmless Customer, its employees, officers, directors, Affiliates, agents, contractors, successors, and assigns (each, a “Customer Indemnitee”) from and against any and all Losses incurred by a Customer Indemnitee arising out of or relating to any Claims by a third party (other than an Affiliate or a Customer Indemnitee) finally awarded by a court of competent jurisdiction or in settlement approved by Mantle in writing that arise from or relate to any allegation that the authorized access to or use by the Customer or any Permitted User of Mantle SaaS Services as permitted pursuant to this Agreement, infringes, violates or misappropriates any Intellectual Property Rights of such third party in Canada. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (i) incorporation of any Mantle’s Products into, or any combination, operation, or use of any Mantle’s Products with, any products or services not provided or authorized by Mantle; (ii) modification of any Mantle’s Products other than by Mantle or with Mantle’s express written approval; (iii) unauthorized use of the Mantle’s Products; or (iv) Losses covered by the Customer’s indemnity obligations in Section 10(d). THIS SECTION 10(e) REPRESENTS THE SOLE AND EXCLUSIVE LIABILITY OF MANTLE FOR THE INFRINGEMENT, VIOLATION, OR MISAPPROPRIATION OF THE INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY UNDER THIS AGREEMENT.
(f) IP Remedy. If Mantle SaaS Services are, or in Mantle’s opinion are likely to be, claimed to infringe, misappropriate, or otherwise violate any third-party Intellectual Property Right, or if Customer’s use of any portion of Mantle SaaS Services are enjoined or threatened to be enjoined, Mantle may, at its option and sole cost and expense: (i) obtain the right for the Customer to continue to use the affected Mantle SaaS Services materially as contemplated by this Agreement; (ii) Modify or replace Mantle SaaS Services in whole or in part, to seek to make Mantle’s Products (as so modified or replaced) non-infringing while providing materially equivalent features and functionality, in which case such modifications or replacements will constitute Mantle SaaS Services under this Agreement; or (iii) if Mantle determines that neither of the foregoing two options are reasonably available, by written notice to Customer, terminate this Agreement, require Customer to immediately cease all use of Mantle SaaS Services or part or feature thereof and provide pro rata refund of any unused prepaid Fees for the terminated Mantle SaaS Services, if applicable.
THE FOREGOING IS IN LIEU OF ANY REPRESENTATION, COVENANTS OR WARRANTIES OF NONINFRINGEMENT, WHICH ARE DISCLAIMED.
(g) Indemnification Procedure. Each Party will promptly notify the other Party in writing of any Claim for which such Party believes it is entitled to be indemnified pursuant to this Section 10. The Party seeking indemnification (the “Indemnitee”) will cooperate with the other Party (the “Indemnitor”) at the Indemnitor’s sole cost and expense. The Indemnitor will promptly take control of the defense and investigation of such Claim (although the Indemnitor will not settle any Claim without the Indemnitee’s prior written consent) and will employ counsel of its choice to handle and defend the same, at the Indemnitor’s sole cost and expense. The Indemnitee’s failure to perform any obligations under this Section 10(g) will not relieve the Indemnitor of its indemnity obligations under this Section 10 except to the extent that the Indemnitor can demonstrate that it has been materially prejudiced as a result of such failure. The Indemnitee may participate in and observe the proceedings at its own cost and expense with counsel of its own choosing.
3. Limitation of Liabilities
The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:
(a) LIMITATION OF LIABILITY. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF MANTLE, ITS AFFILIATES AND LICENSORS IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER TO MANTLE IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM. FOR GREATER CERTAINTY, THE EXISTENCE OF ONE OR MORE CLAIMS UNDER THIS AGREEMENT WILL NOT INCREASE THIS MAXIMUM LIABILITY AMOUNT. IN NO EVENT WILL MANTLE’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
(b) EXCLUDED DAMAGES. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL MANTLE, ITS AFFILIATES AND LICENSORS BE LIABLE TO CUSTOMER, ANY PERMITTED USER OR ANY PERSON FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATI(D) USE, OR (E) GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.
4. Term and Termination
(a) Term and Service Term. The term of this Agreement commences on the Effective Date and continues until the stated term in all Order Forms have expired or have otherwise been terminated, unless earlier terminated pursuant to this Agreement (the “Term”). Subscription to Mantle’s Products commence on the date and are for the Service Term as set forth in the applicable Order Form. Except as otherwise specified in an Order Form, subscriptions to Mantle’s Products and Service Term will automatically renew for additional terms equal to the expiring Service Term, unless or until either Party gives the other notice of non-renewal at least thirty (30) days prior to the end of the then-current Service Term. The term of each applicable Order Form will be conterminous with the Service Term.
(b) Termination for Cause. Either Party may, in addition to other relief, terminate this Agreement for cause: (i) upon thirty (30) days written notice to the other Party of a material breach if such breach remains uncured at the expiration of such period; or (ii) if the other Party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors. Notwithstanding the foregoing, Mantle may terminate this Agreement immediately upon notice to Customer: (A) if Customer breaches Sections 1(b)) or Section 13(e) or as otherwise permitted in this Agreement; (B) due to changes in relationships with Third-Party Services providers outside of Mantle’s control; (C) as otherwise permitted in this Agreement; or (D) to comply with Applicable Law or government requests. If this Agreement is terminated by Customer due to Mantle’s material breach pursuant to this Section 12(b), Mantle will provide Customer with a pro rata refund of any unused Fees prepaid by Customer applicable to the period following the effective date of termination of the Agreement or Order Form. If this Agreement is terminated by Mantle pursuant to Section 12(b), Customer will remain liable to pay the full Fees outstanding on the effective date of termination of the Agreement and Customer shall pay all remaining Fees for the rest of the then-current Service Term, as applicable. Mantle will invoice, and Customer will pay, any accrued but unbilled Fees and any unpaid Fees covering the remainder of the Service Term, had it not been terminated.
(c) Effect of Termination. Upon the effective date of the expiration or termination of this Agreement (the “Termination Effective Date”): (i) Customer will immediately cease (and ensure that all Permitted Users immediately cease) accessing or using the Mantle Solution; (ii) Customer will return any Mantle Property in its possession and certify in writing to Mantle that the Mantle Property has been returned; (iii) no new Order Forms may be agreed to or entered into by the Parties and all Order Forms will terminate; (iv) if Customer requests in writing at least 30 days prior to the Termination Effective Date and provided that Customer has paid all Fees due and payable as at the Termination Effective Date, Mantle will make all Customer Data available to Customer for electronic retrieval for a period of 30 days. Following such 30-day period Mantle will delete or otherwise render inaccessible by recognized technological means any Customer Data that remains in the hardware or systems used by Mantle to provide the Mantle SaaS Services. Notwithstanding anything to the contrary in this Agreement, Mantle may retain Customer Data to the extent and so long as required by Applicable Laws and Mantle may retain Customer Data in its backups, archives and disaster recovery systems until such Customer Data is deleted in the ordinary course, provided that all such Customer Data will remain subject to all confidentiality requirements of this Agreement; and (v) all Fees due and payable and any amounts due to Mantle are immediately due and are to be immediately paid by Customer to Mantle. No expiration or termination will affect Customer’s obligation to pay all Fees that may have become due before such expiration or termination or entitle Customer to any refund.
(d) Survival. The following Sections, together with any other provision of this Agreement which expressly or by its nature survives termination or expiration, or which contemplates performance or observance subsequent to termination or expiration of this Agreement, will survive expiration or termination of this Agreement for any reason: Section 2 (Ownership; Reservation of Rights), Section 4 (Privacy), Section 8 (Fees and Payment), Section 9 (Confidential Information), Section 10 (Warranties; Disclaimer; Indemnity), Section 11 (Limitation of Liabilities), Section 12(d), and Section 13 (General Provisions).
5. General Provisions
(a) Notices. Notices sent to either Party will be effective when delivered in writing and in person or by email, one day after being sent by overnight courier, or five days after being sent by first class mail postage prepaid to the official contact designated by the Party to whom a notice is being given. Notices must be sent: (i) if to Mantle, to the following address:
Mantle RevOps Inc. Address: 424 Warmstone Drive, Ottawa, Ontario, K2S0W2 Attention: Jordan Graham Email: [email protected]
and (ii) if to Customer, to the current postal or email address that Mantle has on file with respect to Customer. Mantle may change its contact information by posting the new contact information on the website or by giving notice thereof to Customer. Customer is solely responsible for keeping its contact information on file with Mantle current at all times during the Term.
(b) Customer Lists. Mantle may identify Customer by name and logo as a Mantle customer on Mantle’s website and on other promotional materials. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.
(c) Assignment. Neither the rights nor the obligations arising under this Agreement are assignable or transferable by Customer or Mantle without the other Party’s prior written consent, which shall not be unreasonably withheld or delayed. Notwithstanding the foregoing: (i) either Party may freely assign this Agreement in its entirety (including all Order Forms), without notice and without the consent of the other Party, to its successor in connection with an amalgamation, merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets; and (ii) Mantle may assign this Agreement to its Affiliates or in connection with a change of control, provided that, in the case of assignment by the Customer, all Fees owed and due have been paid, the assignee is not a competitor of Mantle and in all instances of assignment the assignee agrees to be bound by all the terms of this Agreement (“Permitted Assignment”). In this case, under such Permitted Assignment, such assignee will have and may exercise all the rights, and will assume all of the obligations, of the assignor under this Agreement, except that the assignment will not release the assignor from liability for assignor’s obligations under this Agreement prior to such assignment. Any attempt by a Party to assign its rights or obligations under this Agreement, other than as permitted by this Section, will be void and of no effect. Subject to the foregoing, this Agreement will inure to the benefit of and be binding upon the Parties, their permitted successors and permitted assignees.
(d) Governing Law and Attornment. This Agreement and any Claim related thereto will be governed by and construed in accordance with the laws of the Province of Ontario and the applicable federal laws of Canada, without regard to conflicts of law principles. The Parties will initiate any lawsuits in connection with this Agreement in Toronto, Ontario Canada, and irrevocably attorn to the exclusive personal jurisdiction and venue of the courts sitting therein. Notwithstanding the foregoing, Mantle may: (i) seek remedies to collect unpaid Fees from Customer; and (ii) seek remedies with respect to a violation of Mantle’s Intellectual Property Rights or Section 9 (Confidential Information), in any appropriate jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.
(e) Export Restrictions. Customer will comply with all export laws and regulations under Applicable Laws that may apply to its access to or use of the Services. Mantle makes no representation or warranty that the Services may be exported without Customer first obtaining appropriate licenses or permits under Applicable Law, or that any such license or permit has been, will be, or can be obtained.
(f) Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative and are in addition to, and not in substitution for, any other rights and remedies available at law or in equity or otherwise. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of a Party in this Agreement, mean the right of such Party to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to the other Party. The language used in this Agreement is the language chosen by the Parties to express their mutual intent, and no rule of strict construction will be applied against any Party.
(g) Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond that Party’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes, slowdowns, walkouts or other labour problems (other than those involving that Party’s employees), Internet service failures or delays, cyberattacks, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party software or websites or changes in law preventing or limiting the provision of the Services (“Force Majeure”). This Section does not apply to any of Customer’s obligations under Sections 8, 9, or 10. In the event of any failure or delay caused by a Force Majeure event, the affected Party will give prompt written notice to the other Party stating the period of time the occurrence is expected to continue and use commercially reasonable efforts to end the failure or delay and minimize the effects of such Force Majeure event.
(h) Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be invalid, illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
(i) Waiver. A waiver of any provision of this Agreement must be in writing and a waiver in one instance will not preclude enforcement of such provision on other occasions.
(j) Independent Contractors. Mantle’s relationship to Customer is that of an independent contractor, and neither Party is an agent or partner of the other. Neither Party will have, and neither Party will represent to any third party that it has, any authority to act on behalf of the other Party.
(k) Entire Agreement. This Agreement (including all Order Forms and any documents incorporated herein by reference to a URL or otherwise), constitute the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral. For clarity, any terms and conditions appearing on a purchase order or similar document issued by Customer, or in Customer’s procurement, invoicing, or vendor onboarding portal: (i) do not apply to the Services; and (ii) do not override or form a part of this Agreement (including any Order Form).
(l) Order of Precedence. To the extent of a conflict between these Terms of Service and any Order Forms: (i) in respect of Section 2 (Ownership; Reservation of Rights), Section 9 (Confidential Information), Section 10 (Warranty; Disclaimer; Indemnities), Section 11 (Limitation of Liabilities), Section 12(d) (Survival) and Section 13 (General Provisions, including this Section 13(l)), these Terms of Service will prevail; and (ii) for all other Sections, unless the Order Form expressly states that it modifies or varies these Terms of Service, these Terms of Service will prevail.
(m) Amendments. No amendment, supplement, modification, waiver, or termination of this Agreement and, unless otherwise expressly specified in this Agreement, no consent or approval by any Party, will be binding unless executed in writing by the Party or Parties to be bound thereby. Notwithstanding the preceding sentence, Mantle may unilaterally amend this Agreement, in whole or in part (each, an “Amendment”), by giving Customer 30 days prior notice of such Amendment or posting notice of such Amendment on Mantle’s website. Unless otherwise indicated by Mantle, any such Amendment will become effective 30 days after the date the notice of such Amendment is provided to Customer or is posted on Mantle’s website (whichever is the earlier).
(n) Further Assurances. Each Party will, from time to time, execute and deliver all such further documents and instruments and do all acts and things as the other Party may reasonably require to effectively carry out or better evidence or perfect the full intent and meaning of this Agreement.
(o) Third Party Beneficiaries. Nothing contained in this Agreement, expressed or implied, is intended to confer on any person other than the Parties hereto other than Mantle’s licensors and the Indemnitee or their respective successors and permitted assigns, any rights, remedies, obligations or liabilities pursuant to, or by reason of, this Agreement.
(p) English Language. The Parties confirm that the essential stipulations of this Agreement reflect the mutual agreement of the Parties further to negotiation, and were not imposed by either Party, even when drawn up by one of the Parties. The Parties further confirm that it is the express wish of all Parties that this Agreement, all documents related to this Agreement and all communications between the Parties in the context of the performance of this Agreement be in English only. Les Parties confirment que les stipulations essentielles de la présente entente reflètent le résultat de discussions libres de gré à gré et n’ont pas été imposées par l’une ou l’autre des Parties, même lorsque rédigées par l’une des Parties. Les Parties confirment également que c’est la volonté expresse des Parties que la présente entente, tout document s’y rattachant et toute communication entre les Parties dans le cadre de l’exécution de cette entente soient uniquement en anglais.
6. Definitions
Unless the context requires otherwise, capitalized terms used in this Agreement have the meaning ascribed to them in this Section 14:
(a)“Account Information” means information about Customer that Customer provides to Mantle in connection with the creation or administration of Customer User Account. For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with Customer User Account, Services or Customer’s subscription to the applicable Mantle’s Products.
(b) “Administrator User Account” means the administrator account for use by the Administrator User.
(c) “Administrator Users” means those employees of Customer that are authorized by Customer to access and use the Mantle’s Products on Customer’s behalf through an Administrator User Account.
(d) “Affiliate” means, with respect to a Party, any corporation or other legal entity which is directly or indirectly controlling or controlled by, or under common control with that Party. As used in this definition, “control” means the possession, directly or indirectly, of the power to direct or cause the direction of the management and policies of a corporation or legal entity.
(e) “Agreement” means these Terms of Service, together with any Order Forms, any attachments, exhibits, and/or amendments thereto, all as amended from time to time.
(f) “Aggregated Data” has the meaning in Section 2(a).
(g) “Amendment” has the meaning in Section 13(m).
(h) “Anti-Spam Laws” means Canada’s Anti-Spam Legislation and the regulations thereunder and any other Applicable Laws that regulate the same or similar subject matter.
(i) “Applicable Laws” means applicable statutes, by-laws, rules, regulations, orders, ordinances or judgments, in each case of any Governmental or Regulatory Authority.
(j) “API Key” has the meaning in Section 3.
(k) “Baseline Model” means an AI-powered neural network for natural language processing based on parameters that are trained on text scraped from the open web.
(l) “CEMs” has the meaning in Section 6(b)(iii).
(m) “Claim” means any actual, threatened, or potential civil, criminal, administrative, regulatory, arbitral or investigative demand, allegation, action, suit, investigation or proceeding, or any other claim or demand.
(n) “Confidential Information” has the meaning in Section 9(a).
(o) “Customer”, “you” or “your” has the meaning in the preamble of these Terms of Service.
(p) “Customer Application” means any Customer’s application that interfaces with Mantle’s APIs.
(q) “Customer Data” means any data (other than Aggregated Data), information, content, records, and files, including Customer Personal Information, that Customer (or any of its Permitted Users) loads, makes available to and is accessed by, transmits to or enters into Mantle’s Products, including Prompts.
(r) “Customer GenAI Model” means any GenAI model that has been trained or fine-tuned using Customer Data.
(s) “Customer Indemnitee” has the meaning in Section 10(d).
(t) “Customer-Owned Deliverable” means any Deliverable expressly identified as a “Customer-Owned Deliverable” in an Order Form.
(u) “Customer Personal Information” means Personal Information of Permitted Users, including End Customers, that is processed by Mantle in connection with the Mantle Solution.
(v) “Customer Property” means Customer Applications and Customer Data. The term “Customer Property” does not include any Mantle Property.
(w) “Customer User Accounts” means the Employee User Accounts, accounts for End Customers and Administrator User Accounts together.
(x) “Deliverables” means the work product, reports, data, milestones, and customizations, deliverables or other items developed, generated, created or otherwise delivered by Mantle or any of its personnel, either alone or in collaboration with others, in connection with Professional Services under any applicable Order Form.
(y) “Discloser” has the meaning in Section 9.
(z) “Documentation” means Mantle’s user guides and other end user documentation for the applicable Services available on the online help feature of Mantle’s Products, which may be updated by Mantle from time to time.
(aa) “Effective Date” means the Order Form Effective Date set forth in the Order Form.
(bb) “Embargoed Countries” has the meaning in Section 10(a).
(cc) “Employee User Account” means each user account created by the Administrator User for its Employee Users.
(dd) “Employee Users” means those active employees of Customer that are permitted by Customer to access and use the Mantle’s Products.
(ee) “End Customer” means any entity (and its Affiliates) who is a customer of Customer or a Customer’s Affiliate.
(ff) “Feedback” has the meaning in Section 2(c).
(gg) “Fees” has the meaning in Section 9(a).
(hh) “Force Majeure” has the meaning in Section 13(g).
(ii) “GenAI” means a type of AI containing different technologies, deep learning, large language model, AI trained on large quantities of data to generate new high-quality data, content, outputs, or artifacts, including any APIs.
(jj) “GenAI Outputs” means outputs that are created by the Mantle SaaS Services using GenAI that are based on Customer’s inputs. GenAI Outputs can include text, images, video, narrative (audio), software code (including AI models), synthetic data, designs, schematics, simulations, and any other information.
(kk) “Governmental or Regulatory Authority” means any national, provincial, state, county, municipal, quasi-governmental or self-regulatory department, authority, organization, agency, commission, board, tribunal, dispute settlement panel or body, bureau, official, minister, Crown corporation, or court or other law, rule or regulation-making entity having or purporting to have jurisdiction over Mantle, Customer, or any other person, property, transaction, activity, event or other matter related to this Agreement, including subdivisions of, political subdivisions of and other entities created by such entities.
(ll) “High Risk Activities” means activities that have a: (i) high risk of physical harm or death, serious personal injury, or severe environmental or property damage; (ii) high risk of economic harm; or (iii) high risk government decision making.
(mm) “Indemnitee” has the meaning in Section 10(g).
(nn) “Indemnitor” has the meaning in Section 10(f).
(oo) “Intellectual Property Rights” means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
(pp) “Losses” means any and all damages, fines, penalties, deficiencies, losses, liabilities (including settlements and judgments), costs, and expenses (including interest, court costs, reasonable fees and expenses of lawyers, accountants, and other experts and professionals, or other reasonable fees and expenses of litigation or other proceedings or of any Claim, default, or assessment).
(qq) “Mantle”, “we”, “us” or “our” has the meaning in the preamble of these Terms of Service.
(ss) “Mantle Indemnitee” has the meaning in Section 10(c).
(tt) Mantle Materials” means Mantle’s information or data (including third-party data) that Mantle may provide to Customer pursuant to this Agreement, including the Documentation. Mantle Materials does not include Customer Data or GenAI Outputs
(uu) “Mantle’s Products” means: (i) Mantle SaaS Services if set forth in an Order Form; (ii) Mantle’s API if set forth in an Order Form; (iii) Mantle Materials; (iv) and Mantle’s other software, tools, developer services, data, and websites; and (v) any component or Modification of the foregoing. The term “Mantle’s Products” does not include Services or any Third-Party Services.
(vv) “Mantle Property” has the meaning in Section 2(b).
(ww) “Mantle SaaS Services” means the services through: (i) which Mantle hosts and makes available the Mantle Software as may be described in an Order Form; and (ii) any component or Modification of the services referred to in (i).
(xx) “Mantle Software” means all software used by Mantle to provide the Mantle SaaS Services, and any updates provided as part of the Mantle SaaS Services including those utilizing proprietary Baseline Models, tools and frameworks and any Modifications thereto.
(yy) “Mantle Solution” means the Mantle’s Products and Services, collectively, and any part of them.
(zz) “Modifications” means modifications, improvements, customizations, patches, bug fixes, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
(aaa) “Order Form” any the order form or any ordering documents agreed by both Parties or, if applicable, Mantle and a Customer’s Affiliate from time to time, setting out the details of Mantle’s Products and where applicable Mantle Solution to be provided by Mantle to Customer or, if applicable, Customer’s Affiliate, pursuant to this Agreement, and any amendments thereto.
(bbb) “Order Form Effective Date” means the effective date set forth in an applicable Order Form.
(ccc) “Party” or “Parties” has the meaning in the preamble.
(ddd) “Permitted User(s)” means Administrator Users, End Customers and each Employee User and includes any Person using a Customer User Account.
(eee) “Person” means any individual, sole proprietorship, partnership, firm, entity, unincorporated association, unincorporated syndicate, unincorporated organization, trust, body corporate or Governmental or Regulatory Authority, and where the context requires, any of the foregoing when they are acting as trustee, executor, administrator or other legal representative.
(fff) “Personal Information” means information about an identified or identifiable individual.
(ggg) “Privacy Laws” means any Applicable Laws that govern the privacy or security of Customer Personal Information.
(hhh) “Professional Services” means consulting, development, implementation, integration, and/or training services provided pursuant to an Order Form under this Agreement.
(iii) “Professional Services Schedule” means Schedule A which sets out the Parties’ rights and obligations with respect to Professional Services.
(jjj) “Prompt” means all inputs that Permitted Users provide into the Mantle’s Products.
(kkk) “Recipient” has the meaning in Section 9.
(lll) “Reports” means any reports made available via the Mantle’s Products.
(mmm) “Service Term” means the term of each subscription to Mantle’s Products as specified in the applicable Order Form.
(nnn) “Services” means the Professional Services and Support Services, collectively, and any part of them.
(ooo) “Support Service” has the meaning in Section 7.
(ppp) “Supported Platforms” means third party sites, products or services supported by the Mantle SaaS Services or other applicable Mantle’s Products.
(qqq) “Term” has the meaning in Section 12(a).
(sss) “Terms of Service” these terms of service and/or amendments thereto, all as amended from time to time.
(ttt) “Third Party Licensed Technology” means third party technology that is licensed under separate license terms and not under this Agreement.
(uuu) “Third-Party Services” means Third Party Licensed Technology, Supported Platforms or other third party products that are owned by third parties.
SCHEDULE A TO THESE TERMS OF SERVICE
PROFESSIONAL SERVICES SCHEDULE
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Introduction. This Professional Services Schedule sets out additional terms and conditions with respect to the Professional Services.
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Definitions. Capitalized terms used but not defined in this Professional Services Schedule have the meanings set forth elsewhere in Section 14 of the Terms of Service
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Projects. Mantle and Customer may, from time to time, mutually agree to perform services and provide deliverables that are not included in the then-current scope of Professional Services provided under the Agreement (“Projects”). The Parties will identify each Project and will mutually agree to the terms and conditions relating to such Project in an Order Form.
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Professional Services and Deliverables.
(a) Professional Services and Deliverables. Mantle will use commercially reasonable efforts to deliver all Deliverables and to perform all Professional Services. All Professional Services will be performed remotely unless otherwise indicated in the Order Form as being an on-site provided service. Unless otherwise agreed to by the Parties in the Order Form, Mantle will have no obligation to provide support and maintenance services for Deliverables.
(b) Resource Management. Mantle will, in its sole discretion, determine the number of personnel and the appropriate skill sets of such personnel necessary to perform the Professional Services. Mantle’s resources may include employees of Mantle or subcontractors.
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Suspension In addition to Mantle’s termination rights set out in the Agreement, upon any breach by Customer of an Order Form, Mantle will be entitled, in its discretion and upon prior written notice to Customer, to suspend the Professional Services under the applicable Order Form until such time as such breach or default is remedied by Customer.
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Milestones; Deliverables and Acceptance.
(a) Milestones. For any Deliverable, Service, or other performance obligation of Mantle described as a milestone in an applicable Order Form (each, a “Milestone”), Mantle will use commercially reasonable efforts to complete such Milestone on or before the deadline specified for such Milestone in the applicable Order Form. Any delay in receiving Customer Resources or Customer’s performance of Customer Dependencies will cause Mantle a delay in performing the Professional Services and will result in a delay in Mantle’s ability to meet the Milestones.
(b) Deliverables and Acceptance. Unless otherwise stated in an Order Form, within ten (10) Business Days of Mantle’s completion of any Milestone or Deliverable, Customer will provide Mantle with written notice of its acceptance or rejection of such Milestone or Deliverable. Customer may not reject any Milestone or Deliverable that substantially complies with the requirements set out in the applicable Order Form, and Customer’s failure to respond within such ten (10) day period will constitute Customer’s acceptance of the applicable Milestone or Deliverable. If Customer rejects a Milestone or Deliverable, Mantle will use commercially reasonable efforts to correct the deficiencies set out in Customer’s notice of rejection for such Milestone or Deliverable. Once Mantle has notified Customer that it has completed such corrections, Customer will have seven (7) days from the date of such notice to re-test the Milestone or Deliverable. Customer’s failure to respond within such seven (7) day period will constitute Customer’s acceptance of the applicable Milestone or Deliverable. The process set out in this Section 6(b). will continue until Customer notifies Mantle of its acceptance of a Milestone or Deliverable, or until a Milestone or Deliverable is deemed accepted as set forth herein, but will in no event repeat more than three (3) times. If Customer has provided three rejection notices for the same Milestone or Deliverable, then the Parties will treat the matter as a dispute in good faith. Notwithstanding the foregoing, in the event of the rejection notices from the Customer for the same Milestone, Customer may terminate the Agreement and Order Form and Mantle will provide a refund of prepaid Fees for Professional Services. Notwithstanding anything to the contrary in this schedule and the Agreement, if Customer uses any Deliverable in a production or commercial environment (e.g., “go live” with the Deliverable), Customer will be deemed to have accepted such Deliverable as of the date such Deliverable was first used in such production or commercial environment.
- Customer Dependencies.
(a) Customer will cooperate with Mantle in the performance of the Professional Services and in the development of Deliverables, including by providing access (whether onsite or remotely, as specified in the applicable Order Form) to Customer’s personnel, systems, equipment, or communications facilities, as reasonably requested by Mantle from time to time and perform other applicable customer responsibilities set out below and in an Order Form (“Customer Dependencies”). If Customer has not performed its Customer Dependencies including but not limited to providing all necessary cooperation or information to Mantle, or Mantle is otherwise denied or delayed access or information by Customer, then Mantle will be excused, without liability, from performing any further Professional Services. Such failure to perform Professional Services resulting from Customer’s failures will not relieve Customer from its payment obligations to Mantle.
(b) Unless otherwise set out in the applicable Order Form, for each Order Form, Customer will:
(i) provide timely access to all information requested by Mantle for matters related to the Professional Services;
(ii) provide administrator-level access to Mantle to enable service delivery, installation, and configuration;
(iii) make available at no charge to Mantle all information and key Customer personnel required by Mantle in connection with the Professional Services (collectively, “Customer Resources”); and
(iv) log all incidents with Mantle as soon as they become aware of the incident.
SCHEDULE B TO THESE TERMS OF SERVICE
CHANGE CONTROL PROCEDURE
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Changes. Any service or deliverable not specifically set out in an Order Form will be considered out-of-scope and not included in the Services. The Parties may request any change to the nature or scope of any Services or Deliverables then-currently provided (each, a “Change”) pursuant to this Schedule B.
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Change Order Process. If, after Mantle’s commencement of Services set out in an Order Form or Order Form, either Party requires a Change, such Party will set out the new requirements in writing and deliver such request to the other Party. Following a request made by Customer (or, in the case of a request made by Mantle, concurrently with such request), Mantle will use commercially reasonable efforts to describe in writing the estimated impact of such Change to the costs, Milestones, timeline, Customer responsibilities, and other relevant aspects of the Services or Deliverables. If Customer agrees with such written description of the estimated impact, then the Parties will negotiate in good faith a Change order setting out the detailed terms and conditions pursuant to which the Change will be implemented (“Change Order”). If Customer disagrees with such written description of the estimated impact and the Parties are unable to reach agreement on the impact of such proposed Change, then no such Changes to the Order Form will be effective, and Mantle will perform the Services in accordance with the original applicable Order Form or applicable Order Form.
Questions
If you have any questions or concerns about this policy, please contact:
Mantle RevOps Inc.
424 Warmstone Drive
Ottawa, Ontario
K2S 0W2
Canada