Terms of Service

B3 Systems Terms of Service

These Terms of Service govern access to and use of the B3 Platform, Professional Services, and other related products and services provided by B3 Systems.

B3 Systems Agreement Governed by Ontario law Executed agreements prevail

Introduction

These B3 Systems Terms of Service (“Terms of Service”), together with any Order Form which references these terms form the Agreement between B3 Systems and Customer governing the access, use and receipt, as applicable, of the B3 Platform, Professional Services and other related product and services.

Convenience copy: This web version is provided for convenience. In the event of any inconsistency between this online version and a fully executed Agreement or Order Form, the executed documents will prevail.

1. Definitions

Capitalized terms used in this Agreement have the meaning ascribed to them herein, in the Order Form or in this Section 1 as follows:

  1. “Agreement” means these Terms of Service and the applicable Order Form, as defined in the Order Form.
  2. “Agreement Effective Date” has the meaning set out in the Order Form.
  3. “B3 Platform” has the meaning set out in the Order Form.
  4. “B3 Solution” means the B3 Platform and the Professional Services, along with other products and services made available to Customer in connection with this Agreement.
  5. “B3 Systems” has the meaning set out in the Order Form.
  6. “Customer” has the meaning set out in the Order Form.
  7. “Customer Data” means any data (other than anonymous data and usage data), information, content, records, and files that Customer or any of its Permitted Users loads or enters into, transmits to, or makes available to the B3 Platform, including personal information provided by Customer or Permitted Users.
  8. “Fees” has the meaning set out in the Order Form.
  9. “Order Form” means the order form document that references and incorporates these Terms of Service, whether by reference or otherwise.
  10. “Parties” means both B3 Systems or Customer, and a “Party” means either one of them.
  11. “Professional Services” has the meaning set out in the Order Form.
  12. “Term” has the meaning set out in the Order Form.
  13. “Renewal Term” has the meaning set out in the Order Form.
  14. “Initial Term” has the meaning set out in the Order Form.

2. The B3 Platform

(a) Provisioning of the B3 Platform.

Subject to Customer’s compliance with this Agreement, B3 Systems will make the B3 Platform available to Customer.

(b) Restrictions on Use.

Customer will not itself, and will not permit others to:

  1. sub-license, sell, rent, lend, lease or distribute the B3 Platform or any intellectual property rights therein, or otherwise make the B3 Platform available to any third parties;
  2. use or access the B3 Platform:
    1. in violation of any applicable laws or intellectual property rights;
    2. in a manner that threatens the security or functionality of the B3 Platform; or
    3. for any purpose or in any manner not expressly permitted in this Agreement;
  3. reverse engineer, de-compile or disassemble the B3 Platform or any part of them;
  4. access or use the B3 Platform for the purpose of building a similar or competitive product or service; or
  5. remove or obscure any proprietary notices or labels on the B3 Platform, including brand, copyright, trademark and patent or patent pending notices;

(c) Suspension of Access; Scheduled Downtime; Modifications.

B3 Systems may from time to time and in its discretion, without limiting any of its other rights or remedies at law or in equity, under this Agreement:

  1. suspend Customer’s access to or use of the B3 Platform or any component of them:
    1. for scheduled maintenance;
    2. due to a Force Majeure Event;
    3. if B3 Systems believes in good faith that Customer has violated any provision of this Agreement;
    4. to address any emergency security concerns;
    5. if required to do so by a governmental or regulatory authority or as a result of a change in applicable laws; or
    6. for any other reason as provided in this Agreement; and
  2. make any modifications to the B3 Platform.

(d) Professional Services.

B3 Systems will perform the Professional Services as may be set out in an applicable Order Form, in accordance with the Fees set out in such Order Form.

(e) Subcontracting.

B3 Systems may engage third parties to provide the B3 Platform or the Professional Services, provided B3 Systems will remain responsible for all acts and omissions of such third parties which it has engaged.

(f) Responsibility for Permitted Users.

Customer will be responsible for the compliance by all individuals that are employees and independent contractors it permits to use the B3 Platform or to receive the services (“Permitted User”) with this Agreement, all fees and charges incurred by its Permitted Users in connection with access to and use of the B3 Platform, and any and all activity occurring under the Customer user accounts associated with its Permitted Users, including access to and use of the B3 Platform.

3. Ownership and Licensing

(a) Customer Ownership and License Grant.

Customer grants to B3 Systems a non-exclusive, worldwide, royalty-free, irrevocable, sublicensable, and fully paid-up right to use, reproduce and process Customer Data to: (i) make available the B3 Platform and provide the Professional Services, including where Customer is the recipient of certain features, data and analytics of the B3 Platform that is dependent on B3 System’s analysis of data across industries and sectors, making use of such Customer Data to conduct such analysis, provided B3 Systems complies with the confidentiality obligations set out in this Agreement; (ii) develop, improve and enhance the B3 System Services and its other offerings, including by training language, diffusion or other models or using models or other tools to generate outputs; and (iii) generate information that does not identify Customer in an aggregated and de-identified form (“Aggregated and De-identified Information”).

(b) B3 Ownership.

B3 Systems or its licensors retain all right, title and interest, including any intellectual property rights in and to: (i) the B3 Solution; (ii) Aggregated and De-Identified Data; and (iii) any modifications, adaptations and translations or derivative works to the foregoing (collectively “B3 Systems Property”).

(c) Feedback.

To the extent that Customer or any of its Permitted Users submit ideas, suggestions, documents, or proposals regarding the B3 Platform to B3 Systems (“Feedback”), Customer acknowledges and agrees that B3 Systems 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.

4. Support

Customer will generally have access to B3 Systems’ technical support during office hours: (a) from 9:00 am EST to 5:00 pm EST each Monday to Friday (excluding statutory and civic holidays observed in Ontario, Canada); and (b) via email at support@runb3.com (“Support Services”).

5. Fees and Payment

(a) Fees.

Customer will pay to B3 Systems the fees described in any Order Form (the “Fees”). Unless otherwise noted on an Order Form: (i) all Fees identified are in USD or CAD; and (ii) Fees are non-cancelable and non-refundable. If Customer’s use of the B3 Platform exceeds the service capacity set forth on an Order Form, there is required payment of additional fees at B3’s standard rates.

(b) Changes to the Fees.

B3 Systems reserves the right to change the Fees and institute new charges for each Renewal Term. B3 Systems will use commercially reasonable efforts to provide at least 60 days prior notice to Customer before each Renewal Term.

(c) Invoicing.

B3 Systems will prepare and send to Customer, at the then-current contact information on file with B3 Systems, 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.

(d) Late Payment.

Customer may not withhold or setoff any amounts due under this Agreement. Any late payment will be increased by the costs of collection (if any) and will incur 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. If Customer has not paid all due and undisputed Fees within 10 days of the date that such Fees become due, B3 Systems reserves the right to suspend Customer’s access to the B3 Platform and any delivery of Professional Services until all due and undisputed amounts are paid in full.

(e) Taxes.

The Fees do not include applicable sales, 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 B3 Systems.

6. 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. Notwithstanding the foregoing, Confidential Information does not include any information that: (i) 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; (ii) 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; (iii) 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 (iv) 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:

  1. not disclose Confidential Information of Discloser to any person without the express written consent of Discloser, except to its 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 B3 Systems), or such other recipients as Discloser may approve in writing, that have a “need to know” for the purposes of receiving or providing the B3 Platform, 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;
  2. 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;
  3. not alter or remove from any Confidential Information of Discloser any proprietary legend; and
  4. 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 6(b), Recipient may disclose Discloser’s Confidential Information:

  1. 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;
  2. 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
  3. in the case of B3 Systems, to potential assignees, acquirers or successors of B3 Systems 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 B3 Systems.

(d) Return of Confidential Information.

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 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, B3 Systems may retain any electronically archived Customer’s Confidential Information, provided that such retained information remains subject to the confidentiality obligations in this Section 6. Upon written request of Discloser, Recipient will certify in writing that it has complied with this Section 6.

7. Warranty; Disclaimer

The B3 Solution is made available on an “as-is” and “where-is” basis. To the extent permitted by applicable law, B3 Systems 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.

The B3 Solution interoperates and obtains data and information from a variety of third party sources which are outside of the control of B3 Systems. Accordingly, the content, information and analytics of B3 Solutions are not a substitute for the verification by Customer and Customer should exercise caution and judgement when making decisions based on such content, information and analytics as B3 Systems cannot and will not be liable for any damages or harm as a result of such decisions or related actions. In addition, some features and functionality of the B3 Solution is made available through artificial intelligence, including machine-learning based, technologies (“AI”), including B3rry. Customer acknowledges that AI has inherent limitations, including in respect of hallucinations, accuracy, bias, and limitations on understanding.

8. Indemnities

(a) B3 Systems Indemnity.

B3 Systems will indemnify, defend, and hold harmless Customer and its officers, directors, employees, and agents (each, a “Customer Indemnitee”) from and against any and all losses, damages, Claims, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable legal fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers (each a “Loss” or “Losses”) incurred by a Customer Indemnitee arising out of or relating to 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 (“Claims”) by a third party (other than an affiliate or a Customer Indemnitee) that arise from or relate to any allegation that the B3 Platform infringes any third-party intellectual property right. The foregoing obligation does not apply to any Claims or Losses arising out of or relating to any: (A) incorporation of the B3 Platform into, or any combination, operation, or use of the B3 Platform with, any products or services not provided or authorized by B3 Systems; (B) modification of the B3 Platform other than by B3 Systems or with B3 Systems’ express written approval; (C) unauthorized use of the B3 Platform; or (D) Losses covered by the Customer’s indemnity obligations in Section 8(b).

THIS SECTION 8(a) IS B3 SYSTEMS’ SOLE AND EXCLUSIVE LIABILITY, AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR ANY INFRINGEMENT OR MISAPPROPRIATION OF ANY THIRD PARTY INTELLECTUAL PROPERTY RIGHTS.

If the B3 Platform is, or in B3 Systems’ opinion is likely to be, claimed to infringe, misappropriate, or otherwise violate any third party intellectual property right, or if Customer’s use of any B3 Platform is enjoined or threatened to be enjoined, B3 Systems may, at its option and sole cost and expense: (A) obtain the right for Customer to continue to use the affected B3 Platform materially as contemplated by this Agreement; (B) modify or replace the B3 Platform, in whole or in part, to seek to make the B3 Platform (as so modified or replaced) non-infringing, in which case such modifications or replacements will constitute the B3 Platform under this Agreement; or (C) if B3 Systems determines that neither of the foregoing two options are reasonably available, then this Agreement may be terminated by B3 Systems and B3 Systems’ sole liability, in addition to the indemnification obligations herein, will be to refund prepaid unused Fees attributable to the B3 Platform that were to be provided after the effective date of termination.

(b) Customer Indemnity.

Customer will defend, indemnify and hold harmless B3 Systems, its affiliates, subsidiaries and each of their respective directors, officers, employees, subcontractors and other representatives (each, a “B3 Systems Indemnitee”) from and against any and all Losses incurred by a B3 Systems Indemnitee arising out of or relating to any Claim by a third party (other than an affiliate of a B3 SystemsIndemnitee) that arise from or relate to: (i) Customer Data, including use by B3 Systems to comply with its obligations or exercise its rights hereunder; (ii) unauthorized use of the B3 Platform by Customer or any Permitted User; (iii) any gross negligence, willful misconduct, personal injury, illness, bodily harm or death relating to services; or (vi) use of the B3 Platform (or any part of it) by Customer or any Permitted User in combination with any third party software, application or service.

(c) 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 8. 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 8(c) will not relieve the Indemnitor of its indemnity obligations under this Section 8 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.

9. Limitation of Liabilities

(a) AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EXCEED THE AMOUNT OF FEES PAID OR PAYABLE BY CUSTOMER FOR THE B3 PLATFORM IN THE 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 B3 SYSTEMS’ THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.

(b) TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAWS, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST OR LOSS OF (A) SAVINGS, (B) PROFIT, (C) DATA, (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 OTHERWISE, EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

10. Term and Termination

(a) Term. The term of this Agreement will commence on the Agreement Effective Date (as set out in the Order Form) and continue for the duration of the Term.

(b) Termination for Cause. Either Party may terminate this Agreement, by giving to the other Party written notice of termination upon the occurrence of any of the following events: (i) the other Party breaches or defaults on any of the material terms or conditions of this Agreement (including Customer’s payment obligations under Section 5) and fails to cure such breach or default within 30 days of receipt of written notice thereof; except that, in the event of any breach that is incapable of being cured, such termination will be effective immediately; (ii) the other Party makes any assignment for the benefit of creditors or is unable to pay its debts as they mature in the ordinary course of business; or (iii) any proceedings are instituted by or against the other Party under any insolvency laws or for Customer, receivership or dissolution.

(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 B3 Platform; (ii) Customer will return any B3 Systems Property in its possession and certify in writing to B3 Systems that the B3 Systems Property has been returned; and (iii) all Fees due and payable and any amounts due to B3 Systems are immediately due and are to be immediately paid by Customer to B3 Systems. 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 3 (Ownership and Licensing), Section 5 (Fees and Payment), Section 6 (Confidential Information), Section 7 (Warranty; Disclaimer), Section 8 (Indemnities), Section 9 (Limitation of Liabilities), Section 11 (General Provisions), Section 10(c) (Effect of Termination) and this Section 10(d) (Survival).

11. 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 to the address and contact information set out in the Order Form. B3 Systems may change its contact information by posting the new contact information by giving notice thereof to Customer.

(b) Assignment. Customer will not assign or transfer this Agreement, or transfer or subcontract any of its rights or delegate any of its obligations under this Agreement without the prior written consent of B3 Systems. Any purported assignment or delegation by Customer to any third party in violation of this Section will be null and void. B3 Systems may assign any of its rights, or delegate any of its obligations, under this Agreement to any third party without the consent of Customer. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.

(c) Governing Law and Attornment. This Agreement 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. The United Nations Convention on Contracts for the International Sale of Goods will not apply to this Agreement.

(d) 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 B3 Platform.

(e) 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.

(f) Force Majeure Event. 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 B3 Platform (“Force Majeure Event”).

(g) 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.

(h) 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.

(i) 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.

(j) Entire Agreement. This Agreement (including all Order Forms) constitutes the entire agreement between the Parties and set out all the covenants, promises, warranties, representations, conditions, and agreements between the Parties in connection with the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications between the Parties, whether written or oral.

(k) 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.

(l) Customer Lists. B3 Systems may identify Customer by name and logo as a B3 Systems customer on B3 Systems’ website and on other promotional materials with Customer’s consent. Any goodwill arising from the use of Customer’s name and logo will inure to the benefit of Customer.

(m) Order of Precedence. To the extent of a conflict between these Terms of Service and any Order Forms, these Terms of Services will prevail.

(n) Counterparts. This Agreement, and in particular the Order Form, may be executed and delivered by electronic means, and may be validly executed in any number of counterparts, all of which taken together will constitute one and the same agreement and each of which will constitute an original.

This web version is provided for convenience. In the event of any inconsistency between this online version and a fully executed Agreement or Order Form, the executed documents will prevail.

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