Order Forms are automatically deemed to include all of the terms and conditions of these Terms; provided that whenever the provisions of the Order Form expressly conflict with these Terms, the conflicting provisions of the Order Form control and shall take precedence over the conflicting provisions of the Terms.

 

 

1.       DEFINITIONS

 

1.1      “Administrator” means a person or persons assigned by the Firm to have the authority to act as the administrator of the subscription on behalf of the Firm.

1.2      “Applicable Law” means all applicable requirements, laws, statutes, codes, acts, ordinances, orders, decrees, injunctions, by-laws, rules, regulations, permits, licenses, authorizations, directions and agreements with all applicable government authorities, agencies, bodies or departments, having jurisdiction over this Agreement or the supply or use of the Services.

1.3     “Business Day” means any day except Saturday, Sunday or any day on which banks are generally not open for business in the City of Toronto, Ontario.

1.4      “CASL” means any applicable federal, provincial and local laws, regulations and rules governing the sending of commercial electronic messages.

1.5      “Client” means a client of the Firm.

1.6      “Cloud Provider” has the meaning given in Section 6.1.

1.7      “Consulting Services” means any Consulting Services, other than the use of the Software and related services, authorized by the Firm that the Provider agrees to perform or is required to perform hereunder. The Consulting Services shall include, but are not limited to, software development, integration, data migration, customization, configuration, and implementation services, as further described in the Order Form or a Schedule.

1.8      “Co-Pilot” has the meaning given in Section 5.2.

1.9      “Fees” means the fees to be paid by the Firm pursuant to an Order Form, these Terms and any applicable Schedules.

1.10     “Firm” shall mean the individual or organization who is bound by the terms of an Order Form and these Terms and Conditions.

1.11     “Firm Data” means any data or content inputted into the Software by the Firm or any of its employees or Users, including, but not limited to Firm Marks, engagement letters, signature lines, pre-drafted footers, data relating to Clients of the Firm, Input prompts and feedback provided in relation to the Services.

1.12     “Firm Marks” means the Firm’s trademarks (registered and unregistered), trade names, designs, logos and other indicia of origin that are uploaded by the Firm or its Users onto the Software or Website.

1.13     “FlexPlan Services” means the managed services that the Provider provides to the Firm pursuant to an Order Form.

1.14     “FlexPlan Terms” shall have the meaning set forth in Section 4.1.

1.15     “Input” means a User prompt, submission, or interaction posed to the Co-Pilot or Software, including any Firm Data, shall be deemed an “Input”.

1.16     “Order Form” means (i) the Countable Platform as a Service (SaaS) Order Form; (ii) an online order through the Website or email confirmation specifying the Services to be provided hereunder, that is entered into between the Firm and the Provider, including any Schedules, addenda and supplements thereto.

1.17     “Output” means the AI-generated content produced in response to an Input by the Firm or its Users, including, but not limited to, textual content, spreadsheets, PDF documents, and chatbot responses.

1.18     “Personal Information” means any information relating to identifiable individuals, the collection, use or disclosure of which is regulated by Privacy Laws.

1.19     “Privacy Laws” means any applicable federal, provincial and local laws, regulations and rules governing the collection, use and disclosure of information relating to identifiable individuals, including the Personal Information Protection and Electronic Documents Act (Canada), the Personal Information Protection Act (British Columbia), the Personal Information Protection Act (Alberta), and any similar legislation
enacted by any province or territory of Canada.

1.20     “Schedule” means a schedule, which is attached to this Agreement, or which may be added hereafter by written agreement of the parties.

1.21     “Services” means the use of the Software, Consulting Services and related services, including the FlexPlan Services and the Co-Pilot, to be provided by the Provider to the Firm pursuant to the Order Form.

1.22     “Software” means the Countable automated workflow platform as a service and other related software, data and content made available by the Provider and licensed to the Firm and the number of User licenses purchased by the Firm pursuant to the terms of the Order Form.

1.23     “Term” shall have the meaning given in Section 12.1.

1.24     “Third Party Content” means any data owned or licensed by a third party and inputted into the Software. For greater certainty, Third Party Content includes, but is not limited to Professional Engagement Forms (PEG Forms) and other content provided by CPA Canada.

1.25     “Third Party LLM” means any third-party large language models and other AI tools used by the Provider to process Firm Data to generate Output in the Software for the Firm and its Users.

1.26    “User” means an individual user who (i) accesses the Website and/or is permitted to use the Software; and (ii) agreed to these Terms. Users may include Administrators, employees or contractors of the Firm and Clients who are authorized to use the Services.

1.27     “Website” means the Adinovis website made available www.countable.co or its sub domains or domains with identical names under other top domains and owned by Provider

1.28     “Work Product” means any materials or deliverables generated as part of the Consulting Services and any related work, offered by the Provider to the Firm in accordance with the terms of an Order Form or a Schedule. WORK PRODUCT SPECIFICALLY EXCLUDES THE SOFTWARE AND THE SERVICES OR ANY PRE-EXISTING, THIRD PARTY, OPEN-SOURCE MATERIAL, OR ANY DEVELOPMENT THAT IS INTENDED BY THE PROVIDER TO BE AN ENHANCEMENT TO THE SOFTWARE OR ANY NEW SOFTWARE DEVELOPED BY THE PROVIDER THAT IS INTENDED TO BE OWNED BY THE PROVIDER, AND THE CLIENT DATA.

 

 

2.       PRIVACY AND SECURITY

 

2.1      Please refer to the privacy policy by clicking here (the “Privacy Policy”) for information on how we or our licensors collect, use and disclose your Personal Information. By using the Services and the Website, you agree to the use, collection and disclosure of personally identifiable information in accordance with the Privacy Policy.

 

 

3.       CONSULTING SERVICES AND RESPONSIBILITIES

 

3.1      Consulting Services. The Provider shall perform the Consulting Services in accordance with an Order Form, these Terms, and the applicable Schedule(s), and in a timely, diligent and professional manner. The Order Form and each Schedule is automatically deemed to include all of the terms and conditions of this Agreement; provided that whenever the provisions of an Order or Schedule expressly conflict with these terms and conditions, the conflicting provisions of the Order Form control and take precedence over the conflicting provisions of these terms and conditions, but only for purposes of the Order Form or Schedule.

3.2      Work Schedule. Unless they are expressly described as firm deadlines, in which case the Provider’s obligation shall be to meet such dates, any schedules, deadlines or timeframes set forth in an Order Form or a Schedule represent estimates that the Provider shall use its reasonable commercial efforts to achieve. The Client acknowledges that the Provider’s successful and timely performance of the Consulting Services is dependent on the active participation and collaboration of the Firm, its employees and representatives. The Provider shall not be liable for any delay or cost or expense caused as a result of the delay of the Firm provided that the Provider has notified the Firm of such delay.

3.3      Acceptance. Where an Order Form or a Schedule contemplates the development of a deliverable or Work Product, the Firm shall have a period to review and accept the completed deliverables or Work Product (such period to be specified in the Order Form or the applicable Schedule, or a five (5) business days if no period is specified) and the Provider shall have a period to remedy any deficiencies identified
by the Firm (such period to be as specified in the Order Form or applicable Schedule, or a reasonable period if no period is specified). The Firm shall provide the Provider prompt notice of any deficiencies identified by the Firm. If the Firm does not give written notice of any deficiencies within such period, it shall be deemed to have accepted the Deliverables.

3.4      Firm Representations and Warranties. The Firm represents and warrants that the Client’s use of the Consulting Services and the use of the Consulting Services by the Firm’s directors, officers, employees, contractors, representatives and other agents will (a) be consistent with the Order Form and these Terms, and any licenses provided; and (b) comply with Applicable Law, including without limitation Privacy Laws.

 

 

4.       USER ACCOUNTS

 

4.1      Provisioning and User Accounts. Upon agreeing to an Order Form, the initial Administrator of the Firm will be permitted to register for a User account. The initial Administrator may add other Administrators and authorize Users subject to the limitations and additional terms described in the Order Form. The Initial Administrator and other Administrators shall be deemed to have the authority to manage (including adding and removing) Users. Administrators may deactivate any User if the Administrator wishes to terminate access to the Service for any User. access to specific features of the Services are only available to specific user types.

4.2      Free Trial. If a Firm agrees to a free trial pursuant to an Order Form or registers for a free trial on the Website (“Free Trial”), the Provider will make the applicable Services available to the Firm on a trial basis free of charge until the earlier of (a) the end of the Free Trial period for which the Firm registered to use the applicable Services, or (b) the start date of the Initial Term under an Order Form. Additional trial terms and conditions may appear on the Website’s Free Trial registration page. Any such additional terms and conditions are incorporated into these Terms by reference. Any Firm Data accumulated by a User during a Free Trial will be permanently lost unless the User, on behalf of a Firm, agrees to an Order Form or exports such Firm Data before the end of the Free Trial period. Notwithstanding anything to the contrary in Sections 10 and 11, during the Free Trial, the Services are provided “as-is” without any warranty, support or service levels and the Provider shall have no indemnification obligations nor liability of any type with respect to the Services for the Trial Period unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Services provided during the Free Trial shall not exceed $1,000.

4.3      Registration. Upon logging into the Software for the first time, the Administrators and Users will be prompted to register for a User account. Administrators and Users agree to: (a) provide accurate, current and complete information as may be prompted by any registration forms on the Software or the Website (“Registration Data”); (b) maintain the security of the their password; (c) maintain and promptly update the Registration Data, and any other information they provide to the Software or the Website, and to keep it accurate, current and complete; and (d) accept all risks of unauthorized access to the Registration Data and any other information provided to Provider. The Firm shall be responsible for all activity by Users on the Software, including the activity performed on the Software through the User accounts by an agent, representative, employee (including former employees who maintained access to the Services), or any other person acting on behalf of such User. It is the responsibility of the Firm to delete User accounts or otherwise remove access to Users who should no longer be active (e.g. a User who is no longer an employee or contractor of the Firm or a Vendor of the Firm).

 

 

5.       SERVICES

 

5.1      FlexPlan Services. Upon the Firm’s request for the FlexPlan Services, the Provider will provide an Order Form detailing such FlexPlan Services. Each such Order Form is binding on both Parties and any FlexPlan Services will be governed by the terms of the applicable Order Form, these Terms and the FlexPlan Terms and Conditions available here (the “FlexPlan Terms”).

5.2      AI Generated Content and Acknowledgment. The Services may include features (referred herein as the “Co-Pilot”) that allow the Firm and its Users to (a) interact with an AI-enabled chatbot which utilizes Third-Party LLMs to present information pursuant to User preferences, interactions, and queries; and (b) utilize artificial intelligence to generate Output based on Input and Firm Data. Co-Pilot and related features of the Services are currently in beta, and, as such, are provided to Users solely for evaluation purposes only. As such, you acknowledge that artificial intelligence and machine learning are evolving technologies and understand that the Output made available by such features may not be accurate or reflect reliable information. When using the Services, you understand and agree that (i) all Output may not be accurate, and that you will not refer to such Output as factual information or as a substitute for accounting advice; (ii) you are solely responsible for evaluating the accuracy of such Output; (iii) you will not solely rely on Output as constituting formal accounting advice, and will always ensure that any Output is reviewed or vetted accordingly by a duly licensed and qualified accountant; (iv) the Services may deliver Output that is not endorsed or affiliated with the Provider and is not representative of the Provider’s views. Notwithstanding anything to the contrary in Sections 11 and 12, any Services provided utilizing Co-Pilot are provided “as-is” without any warranty, support or service levels and the Provider shall have no indemnification obligations nor liability of any type with respect to such Services unless such exclusion of liability is not enforceable under Applicable Law in which case the Provider’s liability with respect to those Services provided shall not exceed $1,000.

 

6.       LICENSE TO SOFTWARE, WEBSITE AND LICENSE RESTRICTIONS

 

6.1      License to Software and Website. Provider hereby grants to Firm and authorized Users a non-exclusive, non-transferable license to use the Software and the Website and solely permit the Firm and Users to use the Website and the functionality contained within the Software for legitimate purposes during the Term.

6.2      License Restrictions. Except as set forth in this Agreement, the Order Form, any Schedule and to the extent contrary by Applicable Law: the Firm and User may not (a) make or distribute copies of the Software or Website; (b) alter, merge, adapt or translate the Software or Website, or decompile, reverse engineer, disassemble, or otherwise reduce the Software or Website to a human-perceivable form; (c) sell, rent, lease, host or sublicense the Software (except as is incidental or necessary for the provision of the Software to Users); (d) modify the Software or Website or create derivative works based upon the Software or Website; provided however that the foregoing will not restrict Firm’s rights to exploit any Firm Data which may be incorporated into, reside in, or form a part of the Software; (e) use the Services or the Website in a manner that breaches the rights of any third party, any contract or legal duty or violate any Applicable Law; (f) copy the Services or Website or any part, feature, function or user interface thereof; (g) access or use the Services or Website in order to build a competitive product or service; (h) use the Services or Website other than for its intended purposes; (i) do anything to interfere with or impair the intended operation of the Website; (j) use the Software, including Co-Pilot or any data or Output to directly or indirectly create, train, test or otherwise improve any artificial intelligence or machine learning algorithms, architectures, weights, models, systems or the like.

 

 

7.       HOSTING AND SUPPORT

 

7.1      Hosting. The Provider will cause the Software to be hosted on a cloud server maintained by a reputable third party provider (“Cloud Provider”). The Provider will be responsible for contracting with the Cloud Provider, and for paying all fees and charges of the Cloud Provider. All Firm Data stored on the Services is located on servers operated by the Cloud Provider in the Canada and/or the United States.

7.2      Support, Training. Support, maintenance and training Services are provided to the Firm in accordance with the terms of the Provider’s Service Level Agreement.

7.3      Backups. The Provider will create a backup or cause its Cloud Provider to create a backup of the Software (including all Firm Data) no less frequently than once every twenty-four (24) hours. Upon request from the Firm, the Provider will provide the Firm with a copy of the most recent backup available.

 

 

8.       FIRM REPRESENTATIONS AND WARRANTIES; FIRM RESPONSIBILITIES

 

8.1      Firm Representations and Warranties. The Firm represents and warrants that (a) the Firm’s use of the Services or Website and the use of the Services or Website by the Firm’s Users will (i) be consistent with this Agreement and any licenses provided; and (ii) comply with Applicable Law, including Privacy Laws and CASL; (b) it has and shall maintain in effect all the licenses, permissions, authorizations, consents and permits that it needs to carry out its obligations under this Agreement; (c) it has the right to enter into this Agreement and to allow the Provider to perform the Services; (d) it has obtained all rights in the Firm Data necessary to permit compliance with its obligations under these Terms. The Firm shall be liable for the acts and omissions of any of its Users, directors, officers, employees, contractors, representatives or agents as if such act or omission were an act or omission of the Firm.

8.2      Requirement Active Subscription to CPA Canada PEG. The Firm agrees that the Firm and its Users access to the Software and Services is conditional upon the Firm having an active subscription to the CPA Canada Professional Engagement Guide (PEG) at all times during the Term. The Provider reserves the right, in its sole discretion, without any notice or liability to the Firm or any User, to impose limits, change, suspend or terminate the Firm or any User’s license to use the Software, or any portion thereof, for failure to comply with this Section 7.2.

8.3      Additional Responsibilities. The Firm agrees (a) that it shall be responsible for providing and maintaining its own Internet access with the necessary bandwidth speeds as recommended by the Provider and all necessary telecommunications equipment, services, software and other materials (collectively, “Firm Equipment”) at the Firm’s location(s) necessary for accessing the Services; and (b) the Firm is solely responsible for (i) providing, updating, uploading, modifying and maintaining the Firm Data; (ii) the accuracy and legality of the Firm Data as and when provided by the Firm to the Provider; and (iii) the means by which it acquires and uses such Firm Data (including, without limitation, privacy and data protection)

8.4     Firm Indemnity Regarding Use of Services and Website and Firm Data. The Firm shall be solely responsible for all inputs, selection and use of the Services and Website and all Firm Data or other data transmitted, received or created using the Services or Website, even if transmitted, received or created by someone else, and the Firm agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates harmless from any loss, damage or liability which may result therefrom or from any breach by the Firm or its Users of this Agreement.

8.5      Acceptable Use of the Services and Website. The Firm and its Users may not:
          (a) use, or encourage, promote, facilitate or instruct others to use the Services or the Website for any illegal, harmful or offensive use or to transmit, store, display, distribute or otherwise make available content that is illegal, harmful or offensive;
          (b) use the Services or the Website to violate the security or integrity of any network, computer or communications system, software
application, or network or computing device;
(c) make network connections to any users, hosts, or networks unless the Firm has permission to communicate with them; and/or
(d) distribute, publish, send or facilitate the sending of unsolicited mass e-mail or other messages, promotions, advertising or solicitations (like ‘spam’), including commercial advertising and informational announcements.

The Provider reserves the right, but does not assume the obligation, to investigate any violation of this Section or misuse of the Services or Website.

 

 

9.       FEES, EXPENSES AND PAYMENT

 

9.1      Fees. In consideration for the Services described herein, the Firm shall pay to the Provider, in advance, the Fees more particularly described in an Order Form and any applicable Schedules. Except as otherwise specified herein or in the Order Form, (i) the Fees are based on the Services purchased and not actual usage, (ii) payment obligations are non-cancelable and Fees paid are non-refundable, (iii) a subscription type (pertaining to certain User quantities) cannot be decreased during the relevant subscription term; and (iv) the Firm will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan the Firm selects when purchasing the Services.

9.2      Invoices and Payments. The Provider shall invoice the Firm, in advance, for the Services in accordance with the terms of the Order Form. The Firm shall pay such invoices within five (5) calendar days of receipt (or such other time as specified in the Order Form or any Schedule). Taxes shall be identified and shown as separate items on each invoice. Late payments are subject to interest in the amount of two percent (2%) per month on overdue amounts and interest thereon.

9.3      Taxes. The Firm shall be responsible for all applicable sales, goods and services, harmonized sales, value added, use, excise, other similar taxes, levies and charges not otherwise included in the Fees imposed by applicable tax authorities on the provision of Services hereunder. The Firm shall pay to the Provider such taxes, levies and charges which the Provider is registered to charge and collect.

9.4      Suspension of Service and Acceleration. If any charge owing by the Firm under these Terms or any other agreement is thirty (30) days or more overdue, the Provider may, without limiting its other rights and remedies, accelerate the Firm’s unpaid fee obligations under such agreements, so that all such obligations become immediately due and payable, and suspend the Services until such amounts are paid in full.

9.5      Change to Fees. Subject to an Order Form, the Provider reserves the right to introduce new or change any Fees on or related to the Services from time to time, upon providing the Client with thirty (30) days advanced written notice, by e-mailing the Administrator(s) of the Firm and/or by posting the updated Fees (or the pertinent calculations) on the Website or displaying a notification in the Software. If the Firm does not accept the changed or new Fees, the Firm must terminate these Terms or amend its Services prior to the end of the thirty (30) day period. After such period, if the Terms are not terminated or the Services are not amended, the Firm’s or any of its Users continued use of the Services after the effective date of the change indicates the Firm’s agreement with the new or changed Fees.

 

 

10.     INTELLECTUAL PROPERTY, FIRM DATA AND PRIVACY

 

10.1    Ownership of the Software and Website. Except for any grant of licenses in this Agreement or as otherwise expressly provided in this Agreement, the Provider and its licensors, as applicable, shall retain all copyright, patent rights, trade secret rights, trademarks and other proprietary rights or interests (“Intellectual Property Rights”) in the Software and Website. Nothing in this Agreement, the Order Form, or any Schedules shall be deemed to convey to the Firm or any other party, any ownership right, in or to Software and Website.

10.2    Ownership of Firm Data. The Provider acknowledges and agrees that, as between the Parties, the Firm is the sole and exclusive owner of the Firm Data and any Outputs, and that no right or interest in the Firm Data, other than pursuant to Section 10.3 of this Agreement, and will be collected, handled and used by the Provider only in compliance with the terms of this Agreement. Due to the nature of the Co-Pilot, Output may not be unique and other users may receive similar output from the Software.

10.3    License from Firm to Provider. The Firm hereby grants to the Provider a non-exclusive, royalty-free, non-transferable, limited right to use during the Term, Firm Data and Output provided to the Provider solely to perform and improve the Services pursuant to this Agreement. Without limiting the foregoing, the Provider shall process the Firm Data in certain ways to power the Provider’s Co-Pilot features, including sending Firm Data to its Third Party LLM to generate Output. In doing so, the Provider shall not share the Firm Data with other firms or third parties for any purposes except those provided below. Accordingly:

(a) Regarding data processing by Third Party LLMs, the Firm understands, acknowledges, and agrees that:
(i) The Provider shall transmit Inputs to its Third Party LLM in order to generate Output and retrieve Output from Third Party LLM to provide to the Firm; all such transmitted and retrieved Firm Data shall be encrypted in transit according to industry standard encryption protocols.
(ii) The Provider shall only transmit Firm Data as needed to Third Party LLMs to deliver the Services contemplated in the Order Form. The Firm Data will not be used to train Third Party LLMs, unless explicitly consented to, in writing, by the Firm.
(iii) Behavioral data generated through interactions with the Provider’s Co-Pilot features (e.g. usage patterns and error logs) will not include any Firm Data or personally identifiable information. Behavioral data will not be shared with providers of Third Party LLMs but may be used by the Provider to improve the Services, optimize workflows and for other internal purposes.

(b) Regarding the Provider’s internal data processing activities, the Firm understands, acknowledges, and agrees to the following:

(i) The Provider only collects, processes, stores, or otherwise uses Firm Data as necessary to perform Services that the Firm has purchased in an Order Form, or perform other activities specifically requested by its Users.

(ii) The Provider collects and analyzes non-identifying analytics data, such as Users’ quantitative usage metrics and other statistical information, relating to the Firm’s use and performance of various aspects of the Services, and analyzes such data to improve and enhance the Services, as well as to diagnose and correct issues associated with the Services.

(iii) The Provider may process stored Firm Data to directly improve the quality of (and/or customize the experience of) the Services. This may include training internal artificial intelligence models for general product improvement or Firm-specific personalization.

10.4    All Other Rights Reserved, Further Assurances. Except as expressly set forth herein or in the Order Form or a Schedule, all Intellectual Property Rights are expressly reserved by the parties. The Firm or the Provider, as applicable, shall execute and deliver such instruments and take such other steps as may be requested by the Provider or the Firm, as applicable, from time to time in order to give effect to the provisions of this Article.

10.5    Privacy Laws. The Firm and authorized Users represent that (a) they have complied with all applicable Privacy Laws in connection with the collection, use and disclosure of Personal Information, and the provision of Personal Information to the Provider complies with all applicable Privacy Laws; and (b) all individuals to whom such Personal Information relates have consented to the Provider’s collection, use and disclosure of such Personal Information for the purposes disclosed in this Agreement or our Privacy Policy.

10.6    Third Party/Open Source Content and Software. The Software may contain or provide the ability to integrate the Services with Third Party Content, third party software and/or open source software, which may be subject to third party licenses and require notices and/or additional terms and conditions (“Third Party Licenses”). These Third Party Licenses and Plaid Terms are made a part of and incorporated into these Terms. By accepting these Terms, the Firm and its Users are also accepting the Third Party Licenses, if any, set forth therein and the Plaid Terms. To view the Third Party Licenses, please contact info@countable.co. The Firm and all authorized Users agree that the Provider has no liability arising from use of any integrations or arising from such Third Party Content, third party software, open source software and related services. The Provider may modify or cancel the integrations at any time, without notice.

10.7    License by Firm to Use Feedback. The Firm grants the Provider a worldwide, perpetual, irrevocable, royalty-free license to use and incorporate into its services any suggestion, enhancement request, recommendation, correction or other feedback provided by the Firm or Users relating to the operation of the Software, the Services, or the Website.

 

11.     DISCLAIMER AND LIMITATION OF LIABILITY

 

11.1    DISCLAIMER

(A) EXCEPT AS EXPRESSLY SET OUT IN THE ORDER FORM, THIS AGREEMENT OR THE FLEXPLAN TERMS, IF APPLICABLE, THE SERVICES AND THE WEBSITE ARE PROVIDED TO THE FIRM AND AUTHORIZED USERS ON AN “AS IS” BASIS, WITHOUT WARRANTIES FROM THE PROVIDER OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE PROVIDER EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, UNLESS OTHERWISE SPECIFIED IN THE APPLICABLE ORDER FORM. THE PROVIDER DISCLAIMS ALL LIABILITY FOR ANY CONTENT POSTED ON THE WEBSITE THAT MAY BE OUTDATED, INACCURATE OR MISLEADING. THE PROVIDER DOES NOT WARRANT THAT THE SERVICES OR THE WEBSITE WILL BE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION. ADDITIONALLY, THE PROVIDER DOES NOT REPRESENT OR WARRANT THAT ANY OUTPUT GENERATED BY THE SERVICES IS ACCURATE, COMPLETE, UP TO DATE, RELIABLE, CURRENT, ERROR-FREE OR SATISFACTORY TO THE FIRM AND AUTHORIZED USERS. THE PROVIDER IS NOT LIABLE FOR ANY STATEMENTS OR REPRESENTATIONS INCLUDED IN ANY OUTPUT.

(B) THE PROVIDER HAS NO CONTROL OVER THE OPERATION OF THE THIRD PARTY LLMS IT ACCESSES AS PART OF ITS PROCESSING ACTIVITIES, THE OUTPUTS THEY GENERATE, OR THE CONTINUED AVAILABILITY OF ANY THIRD PARTY LLMS.

(C) THE OUTPUT IS INTENDED TO PROVIDE PRACTICAL AND USEFUL INFORMATION ON THE SUBJECT MATTER COVERED BASED ON THE FIRM AND USER INPUTS. WHILE SUCH OUTPUT MAY CONCERN ISSUES RELATED TO ACCOUNTING SERVICES OR DOCUMENTS, SUCH CONTENT IS NOT FORMAL ACCOUNTING OR TAX ADVICE. THE FIRM AND ITS USERS WILL NOT RELY ON ANY OUTPUT OF THE SERVICES WITHOUT SEEKING ADVICE OF, AND/OR VETTING ANY OUTPUT THROUGH, A DULY LICENSED AND QUALIFIED PROFESSIONAL IN THE APPLICABLE SUBJECT MATTER AND JURISDICTION. THE PROVIDER EXPRESSLY DISCLAIMS ALL LIABILITY IN RESPECT OF FIRM OR USER ACTIONS TAKEN OR NOT TAKEN BASED ON ANY OUTPUT, OR OTHERWISE IN CONNECTION WITH THE FIRM’S USE OF THE OUTPUT GENERATED FROM THE SERVICES.

(D) THE FIRM UNDERSTANDS THAT IT, AND ITS USERS, ARE ULTIMATELY RESPONSIBLE FOR ALL DECISIONS MADE, ACTIONS TAKEN, AND FAILURES TO TAKE ACTION BASED ON THE FIRM’S USE OF THE OUTPUT, WHICH USES ARTIFICIAL INTELLIGENCE TO GENERATE PREDICTIONS BASED ON PATTERNS IN DATA. OUTPUT GENERATED BY ARTICIFICAL INTELLIGENCE (INCLUDING THIRD PARTY LLMS) IS PROBABILISTIC AND SHOULD BE EVALUATED FOR ACCURACY AS APPROPRIATE FOR YOUR USE CASE.

11.2    No Indirect, Etc. Damages. Under no circumstances shall either party be liable to the other party for any claim for (i) indirect, special or consequential damages, (ii) compensation for loss of profits, anticipated revenue, savings or goodwill, or (iii) exemplary, aggravated or punitive damages howsoever incurred; in each case under any theory of law or equity, arising out of or in any way related to this Agreement, the FlexPlan Terms, or any Services, even if advised of the possibility thereof.

11.3    Limitation of Aggregate Liability. Except as otherwise specifically provided under this Agreement, (a) the liability of either party for any claim, demand or cause of action whether based on contract, tort (including negligence) or otherwise, or for any losses, damages, costs and expense (including but not limited to legal fees) (collectively, “Losses”) arising out of or resulting from this Agreement or any of Services, including the FlexPlan Services, shall not exceed the Fees paid or payable by the Firm to the Provider under this Agreement in the six (6) months preceding the Loss; and (b) the Provider’s indemnification obligations hereunder will be limited to an amount equal to two (2) times the Fees paid or payable by the Firm under this Agreement in the twelve (12) months preceding the event giving rise to the indemnification obligation.

11.4    Reasonableness of Limitations. The Provider, the Firm and Users agree that the limitations contained in this Section 10 are reasonable in scope and form an integral part of this Agreement.

 

 

12.     INDEMNIFICATION

 

12.1    Indemnity by Firm. The Firm agrees to defend, indemnify and hold the Provider, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Provider may incur as a result of or in connection with any third party claim relating to or resulting from (a) any breach by the Firm of the Firm’s obligations under this Agreement or the FlexPlan Terms including its obligation to comply with all Applicable Law; or (b) any third party claim that the Provider’s use of any Firm Data, including for generating Output, or Third Party Content infringes, misappropriates or otherwise violates the intellectual property rights of any third party or any Privacy Laws.

12.2    Indemnity by Provider. Subject to Section 11.3 (Limitation of Aggregate Liability), the Provider agrees to defend, indemnify and hold the Firm, its directors, officers, employees, agents, contractors and affiliates, harmless from any loss, damage or liability, including all reasonable legal costs, that the Firm may incur as a result of or in connection with: (a) any valid claim that the Software or any portion of it infringes the intellectual property rights of any third party (an “Infringement Claim”); (b) any third-party claim relating to or resulting from any breach by the Provider of the Provider’s obligations under this Agreement, including its obligation to comply with all Applicable Law; provided that, the Provider shall not be obligated to indemnify the Firm to the extent that the Infringement Claim results from: (a) the Firm or any User’s breach of this Agreement; (b) combination of the Services with any product or service not provided or authoized in writing by Company (where such Infringement Claim would not have arisen but for such combination); (c) modification of the Services other than performed or authorized in writing by Company (where such Infringement Claim would not have arisen but for such modification); or (d) the Firm or any User’s use of any Output from the Services.

 

 

13.     TERM

 

13.1    Term. The term of this Agreement (“Term”) shall commence on the Effective Date set out in the Order Form and, for subscription-based services, continue for length of time described in the Order Form as the Initial Term (“Initial Term”). Thereafter, for subscription-based services, this Agreement will automatically renew for successive terms equal to the length of time of the Initial Term (“Renewal Terms”), unless terminated in accordance with this Agreement. The Term of this Agreement shall remain in effect until expiry or termination of all Services provided under any Order Form.

13.2    Termination.
(a) Prior to Renewal. Except in the case of a month-to-month term, either party may terminate this Agreement by providing written notice to the other party at least (60) days prior to the end of the then current term. For month-to-month terms, the Firm may provide thirty (30) days prior written notice to terminate this Agreement. For greater certainty, such notice may be given prior to the end of such current term but will only take effect at the end of the then current term.
(b) Breach. Either party may terminate this Agreement if the other party materially breaches this Agreement, including any failure to make payments when due, and such other party fails to cure such breach in all material respects within thirty (30) days after being given notice of the breach from the non-breaching party.
(c) Insolvency. Either party may terminate this Agreement, upon written notice to the other party, if such other party is subject to proceedings in bankruptcy or insolvency, voluntarily or involuntarily, if a receiver is appointed with or without the other party’s consent, if the other party assigns its property to its creditors or performs any other act of bankruptcy, or if the other party becomes insolvent and cannot pay its debts when they are due.

13.3    Early Termination. If this Agreement is terminated pursuant to Section 13.2 prior to the end of such current term, the Firm shall pay to the Provider, as liquidated damages and not a penalty, an amount equal to the total monthly Fees (as described in the Order Form) multiplied by the number of months remaining prior to the end of such current term.

13.4    Termination and Suspension of Users. Notwithstanding any provision of these Terms, the Provider reserves the right, in its sole discretion, without any notice or liability to the Firm or any User, to (a) terminate a User’s license to use the Software, or any portion thereof; (b) block or prevent a User’s future access to and use of all or any portion of the Software or the Website; (c) change, suspend, or discontinue any aspect of the Software or the Website; and (d) impose limits on the Software or Website.

13.5    Effect of Termination. If this Agreement is terminated in accordance with Section 13.2, then:
(a) Each party shall promptly deliver to the other party, all papers, databases, documents, software programs, and other tangible items (including copies) constituting the other party’s Confidential Information in its possession or under its control, or on request, destroy such materials and certify that it has done so;
(b) upon a request by the Firm within thirty (30) days of termination, the Provider will within fifteen (15) days of such request, provide to the Firm a copy of the Firm Data in a format that is readable using commercially available third party software and or the Software; and
(c) upon a request by the Firm within thirty (30) days of termination, the Provider will delete and cause to be deleted all Firm Data from all computer systems owned and controlled by the Provider.

 

14.     CONFIDENTIALITY

14.1    Definition of Confidential Information. “Confidential Information” means all information disclosed by a party (“Disclosing Party”) to the other party (“Receiving Party”), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Firm’s Confidential Information includes Firm Data. The Provider’s Confidential Information includes the Software, the Services and the terms and conditions of this Agreement. However, Confidential Information does not include any information that (a) is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; (d) is independently developed by the Receiving Party; or (e) is Feedback from the Firm or its Users.

14.2    Protection of Confidential Information. The Receiving Party will (a) use the same degree of care that it uses to protect the confidentiality of its own confidential information of like kind (but not less than reasonable care); (b) not use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement; and (c) except as otherwise authorized by the Disclosing Party in writing, limit access to Confidential Information of the Disclosing Party to those of its and its affiliates’ employees and contractors who need that access for purposes consistent with this Agreement and who have signed confidentiality agreements with the Receiving Party containing protections no less stringent than those herein.

14.3    Compelled Disclosure. The Receiving Party may disclose Confidential Information of the Disclosing Party to the extent compelled by law to do so, provided the Receiving Party, if permitted by law, gives the Disclosing Party prior notice of the compelled disclosure.

14.4    Destruction. Each party, upon the request of the other party or within thirty (30) days after termination of this Agreement (whichever is earlier), agrees to return and cause its representatives to return, all copies of Confidential Information belonging to or provided by the other party or destroy such copies as directed by that party and certify their destruction.

14.5    Indemnity. Each party agrees to indemnify and hold the other party harmless from and against all loss or damage or any kind and nature suffered by the other party as a result of any breach by it or its representatives of its obligations relating to confidentiality contained in this Section 13.

 

15.     GENERAL

15.1    Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario and the laws of Canada applicable therein. This Agreement shall be treated, in all respects, as an Ontario contract.

15.2    Survival. Any terms and conditions of this Agreement which by their nature extend beyond termination of this Agreement shall survive such termination. This includes, without limitation Section 10 (Intellectual Property, Firm Data and Privacy) (but not section 10.3 (License from Firm to Provider)), Section 11 (Disclaimer and Limitation of Liability), Section 12 (Indemnification), Section 13.5 (Effect of Termination), Section 14 (Confidentiality) and applicable provisions of Section 15 (General).

15.3    Dispute Resolution.
(a) This Section 15.3 sets out the process (the “Dispute Resolution Process”) for resolving all disputes, issues, controversies, and/or claims arising out of or in connection with this Agreement, or in respect of any legal relationship associated with or derived from this Agreement (“Disputes”).(b) Either party may initiate the Dispute Resolution Process by sending a notice of a Dispute (a “Dispute Notice”) to the other party. Upon delivery of a Dispute Notice to either party, each party shall appoint a knowledgeable, responsible, non-lawyer, management representative to meet and negotiate in good faith with the representative of the other party in order to resolve the Dispute.(c) All Disputes that are not resolved within thirty (30) days following delivery of a Dispute Notice shall be arbitrated and finally resolved, with no right of appeal, even on questions of law, pursuant to the National Arbitration Rules of the ADR Institute of Canada, Inc. The place of arbitration shall be Toronto, Ontario, Canada. The language of the arbitration shall be English.(d) Notwithstanding anything contained in the Agreement to the contrary, either party shall be entitled to seek injunctive or other equitable relief from a court of competent jurisdiction whenever the facts or circumstances would permit a party to seek such relief.

15.4    Relationship. The relationship between the Firm and the Provider will at all times be one of independent contractor and nothing herein shall be construed as implying an employment, partnership, or joint venture relationship. The Provider is not an employee of the Firm and is not entitled to any benefits that the Firm may provide to its employees. Nothing herein shall be construed as empowering either party to act as a representative or agent of the other party. Neither party shall have the authority to enter into any contract, nor to assume any liability, on behalf of the other party, nor to bind or commit the other party in any manner, except as expressly provided in this Agreement.

15.5    Force Majeure. Except as expressly provided otherwise in this Agreement, dates and times by which the Firm or the Provider is required to perform under this Agreement, the Order Form, or a Schedule (except for any payment obligation) will be postponed automatically to the extent and for the period of time that the Firm or the Provider, as the case may be, is prevented by causes outside of its reasonable control from meeting such dates and times by reason of any cause beyond its reasonable control (provided that a lack of financial resources shall not constitute an event beyond the reasonable control of a party). The following events are deemed to be outside of a party’s reasonable control: acts of God, acts of government, acts of war, civil or military unrest, acts of public enemies, epidemics, riots, fire, unavailability of communications or electrical power service provided by third parties, governmental regulations superimposed after the
fact and earthquakes, explosions, floods or other disasters provided that such causes could not have been reasonably foreseen and the risk and/or consequences of such causes mitigated on a commercially reasonable basis. The parties agree that an event shall not be considered to beyond reasonable control if a reasonable business person applying due diligence in the same or similar circumstances under the same or similar obligations as the provisions of the Order Form or Schedule would have put in place contingency plans to either materially mitigate or negate the effects of such event. A party seeking to rely on this Section must (i) notify the other party immediately and in detail of the anticipated or actual commencement of and the cause of postponement; (ii) notify the other party promptly of any material changes in the circumstances which resulted in the postponement including when the reason for the postponement is at an end; and (iii) use diligent efforts to avoid or remove such cause of non-performance and to minimize the consequences thereof, including utilizing all resources reasonably required in the circumstances including without limitation obtaining supplies or services from other resources if they are reasonably available.

15.6    Non-Solicitation. During the Term and for a period of one (1) year following termination of this Agreement for any reason, the Firm may not, directly or indirectly, (a) solicit for employment any employee or independent contractor of the Provider who was materially involved in the performance of this Agreement; or (b) induce or attempt to induce any employee or independent contractor of the Provider who was materially involved in the performance of this Agreement to leave his or her employ or contract, as applicable, with the Firm. The foregoing will not prevent the Firm from hiring any employee or independent contractor who responds to a job posting or advertisement that is not specifically targeted at such employee or independent contractor.

15.7    Currency. Unless otherwise specified in the Order Form, all references to amounts of money in this Agreement refer to United States (USD) currency.

15.8    Notices. Notices that we give to you (other than notice of amendment of this Agreement), may be provided in any of the following ways. First, we may email the Administrator(s) at the contact information provided in the Order Form or any registration data. Second, we may post a notice on the Website. It is your responsibility to periodically review the Website for notices. The Firm may provide notice to the Provider by (a) submitting a ticket through the helpdesk; or (b) e-mailing the Provider.

15.9    Successors and Assigns. This Agreement shall ensure to the benefit of, and be binding on, the parties and their respective successors and permitted assigns. The Provider may assign this Agreement, in its sole discretion.

15.10    Severability. Any provision of this Agreement which is prohibited or unenforceable in any jurisdiction will, as to that jurisdiction, be ineffective to the extent of such prohibition or unenforceability and will be severed from the balance of this Agreement, all without affecting the remaining provisions of this Agreement or affecting the validity or enforceability of such provision in any other jurisdiction.

15.11    Entire Agreement. This Agreement, the Order Form and the Schedules constitute the entire agreement between the parties with respect to the subject matter of this Agreement and supersedes all previous negotiations, proposals, commitments, writings and understandings of any nature whatsoever.

15.12    Waiver. No term or provision of this Agreement is deemed waived and no breach excused, unless the waiver or consent is in writing and signed by the party claiming to have waived or consented. Any consent by any party to, or waiver of, a breach by the other, whether expressed or implied, does not constitute a consent to, waiver of, or excuse for, any other different or subsequent breach.

15.13    Fully Negotiated Agreement. The Firm and the Provider acknowledge and agree that all of the provisions of this Agreement have been fully negotiated, that neither of them shall be deemed the drafter of this Agreement and that, in construing this Agreement in case of any claim that any provision hereof may be ambiguous, no such provision shall be construed in favour of one party on the ground that such provision was drafted by the other party.

15.14    Language. The parties have required that this Agreement and all deeds, documents and notices relating to this Agreement be drawn up in the English language. Les parties aux présentes ont exigé que le présent contrat et tous autres contrats, documents ou avis afférents aux présentes soient rédigés en langue anglaise.

15.15    Modification of Terms. The Provider may modify this Agreement at any time by (a) posting a notice on the Website or on the Software; or (b) by e-mailing the Administrator(s) of the Firm. The Provider will also update the “Last Updated” date at the top of the Agreement. You are responsible for checking the Agreement whenever you access or use the Services. By continuing to access or use the Services, you are indicating that you agree to be bound by the modified terms. If the modified terms are not acceptable to you, you must stop accessing and using the Services. Notwithstanding the foregoing, the information and material on the Website, and the Website, may be changed, withdrawn or removed at any time in the Provider’s sole discretion without notice.

15.16    Questions. If you have any questions regarding these Terms or your use of the Services, please contact us here:

Countable Inc.

info@countable.co