This Custom Commercial Credit Report Services Agreement (the “Agreement”) by and between “Customer” and Equifax Canada Co. (“Equifax”).
RECITALS:
A. Equifax has entered into a business relationship with Safe Information Group N.V. (“Creditsafe”) pursuant to which Creditsafe operates an on-line platform at www.creditsafe.com (the “Website”) under which Customer can access the Services.
B. Customer wishes to receive access to the Website in order to receive the Services.
IN CONSIDERATION of the mutual promises set out below, and for other good and valuable consideration acknowledged by the parties, Equifax and Customer agree as follows:
1. Definitions.
1.1. “Order Confirmation” means the order form setting out the products and Services to be provided to the Customer.
1.2. “Intellectual Property Rights” means copyright, database right, domain names, patents, registered and unregistered design rights, trade secrets, registered and unregistered trademarks, and all other industrial, commercial or intellectual property rights existing in any country and all the rights to apply for the same.
1.3. “Personnel” means a party’s employees, officers, directors, and agents.
1.4. “Services” shall be those set out in the Order Confirmation, and shall include:
1.4.1. Creditsafe company reports (which provides information on and assessment of the creditworthiness of businesses via the internet) and/or
1.4.2. Provision of business marketing and prospecting data via the internet and/or
1.4.3. Services provided in conjunction with third parties which may be subject to additional terms.
2. License.
2.1. Equifax hereby grants a non-exclusive, non-transferable, revocable license to access and use the Services via the Website solely in Canada for Customer’s internal business purposes only.
2.2. Customer covenants and agrees that no action whatsoever will be taken to access, store, merge, aggregate, compile, decompile, copy, reverse engineer, create derivative products, derive the source code, sublicense, sell, distribute, commercially exploit, or otherwise make available for use any part of the Services, including information received as a result of using the Services, except as expressly stated in this Agreement.
2.3. By agreeing to purchase the Serivces or by accessing the Website or using the Services, the Customer accepts the content of this Agreement. Unless otherwise stated in this Agreement, where the terms of the Order Confirmation conflict with this Agreement, this Agreement shall take precedence.
2.4. Unless otherwise detailed within the Order Confirmation, the use of the Services provided under the terms of this Agreement is limited to one designated user any may not be used by any other person other than the designated user. The use of the Services by more than one individual, either simultaneously or otherwise, will require the provision of additional licenses.
2.5. From time to time Equifax and/or Creditsafe, in its absolute discretion, may make changes, alterations or updates to:
2.5.1. these Terms and Conditions in order to comply with applicable legislation and/ or regulatory requirements; and/ or
2.5.2. the Services; and/or
2.5.3. the Website.
3. Customer Obligations and Conduct.
3.1. The Customer shall:
3.1.1. not do anything to harm Equifax or Creditsafe’s reputation;
3.1.2. abide by all laws & regulations applicable to its use of the Website and Services and the data contained within the Services;
3.1.3. not include the Services in any product or service which the Customer sells.
3.2. During the Term of this Agreement, the Customer agrees not to attempt to gain or permit unauthorized access to the Website and/ or the Services or modify the same.
3.3. The Customer shall only take such copies of data obtained via the Services as are reasonably required for the use of the Services in accordance with this Agreement. The Customer shall not remove any proprietary notices from the Services, or copies or print outs of data obtained via the Services.
4. Term and Termination.
4.1. This Agreement shall become effective either a) on the date the Customer agrees to purchase the products and Services, such date to be included in the Order Confirmation, or b) the date the Customer agrees to this Agreement, whichever is earlier, and shall continue in full force and effect for a period of 12 months, unless otherwise specified in the Order Confirmation (the “Initial Term”). For clarity, the Order Confirmation shall be binding and form part of this Agreement
4.2. Upon completion of the Initial Term, this Agreement shall automatically renew for successive one (1) year periods (each a Renewal Term”) unless terminated by either party giving at least ninety (90) days’ prior written notice to the other Party.
4.3. Either Party may terminate this Agreement at any time:
4.3.1. immediately upon giving notice if the other party is insolvent, becomes the subject of any bankruptcy proceedings, or takes steps to compromise the claims of its creditors; or
4.3.2. immediately upon giving notice if the other has failed to correct a material breach of this Agreement within thirty (30) days of being given notice to do so.
4.4. Equifax may, without any liability to Customer, terminate this Agreement immediately if, at any time and for any reason, as a result, the Customer is no longer eligible to use the Services under applicable laws or Equifax’s policies.
4.5. Upon termination or expiration of this Agreement:
4.5.1. all rights and licences granted under this Agreement, including the right to access and use the Services and/ or Website, shall immediately terminate;
4.5.2. the Customer must delete all and any part of the Services (including any data or reports obtained via the Services) held by the Customer in any format and the Customer may not make any further use of the Services (or the data obtained from use of the Services);
4.5.3. the Customer shall immediately pay to Equifax all of Equifax’s outstanding and unpaid invoices;
4.5.4. the accrued rights, remedies, obligations and liabilities of the parties as at expiry or termination shall be unaffected, including the right to claim damages in respect of any breach of this Agreement which existed at or before the date of termination or expiry.
5. Pricing.
5.1. Customer will be charged and shall pay the fees to Equifax set out in the Order Confirmation.
5.2. Equifax will invoice Customer immediately following execution of this Agreement, unless otherwise set out in the Order Confirmation. The Customer shall pay all invoiced fees and charges net due upon receipt of the invoice date unless otherwise specified in the Order Confirmation.
5.3. All fees and charges described in this Agreement and any Order Confirmation are exclusive of applicable taxes, which the Customer will also be charged and pay.
5.4. Equifax may charge interest at the rate of 1% per month (12% per annum) on any undisputed invoiced fees and charges not paid by the Customer when due.
6. Indemnification and Limitation of Liability.
6.1. Customer shall indemnify, defend and hold harmless Equifax, Creditsafe, and its and their respective Personnel, parent and subsidiary companies (“Affilates”) from and against any and all Claims to the extent arising as a result of: (a) Customer’s violation of any applicable law, regulation, rule or judicial or administrative order related to Customer’s access to and/or use of the Services; (b) Customer’s misuse, or any modification of the Services constituting an infringement of a third party’s Intellectual Property Rights; (c) breach of the license granted to Customer under this Agreement; (d) breach of any of Customer obligations under this Agreement; and (e) any business decision taken or made by Customer as a result of Customer’s receipt of the Services.
6.2. In no event shall Equifax, Creditsafe, or Customer be liable (whether for breach of contract, in negligence or any other tort, under statute or otherwise at all), for the following: (i) any indirect, special, incidental, secondary, consequential or exemplary damages, (including but not limited to loss of business, capital, profit, reputation or goodwill), even if advised of the possibility thereof by the other Party; or (ii) any damages arising out of a Force Majeure Event.
6.3. Neither Equifax or Creditsafe, nor its and their Affiliates will be liable for any damage or cost incurred by the Customer arising from any inaccuracy or omission in the Services.
6.4. Each of Equifax's and Creditsafe’s aggregate liability under this Agreement is capped at an amount equivalent to the total fees and charges paid by the Customer to Equifax during the six (6) months immediately preceding the date the claim arose.
7. Confidentiality.
7.1. Equifax, Creditsafe and Customer each undertake that they shall not at any time disclose to any person any confidential information concerning the business, affairs, customers, clients or suppliers of the other party except as explicitly permitted by this Agreement.
7.2. Equifax, Creditsafe, and Customer may disclose another’s confidential information:
7.2.1. To its employees, officers, representatives or advisers who need to know such information for the purposes of carrying out its obligations under this agreement. Each shall ensure that its employees, officers, representatives or advisers to whom it discloses any other’s confidential information comply with this clause 7;
7.2.2. And as may be required by law, court order or any governmental or regulatory authority, provided that it provides the others with prompt written notice and an opportunity to limit the disclosure.
7.3. No party shall use any other party's confidential information for any purpose other than to perform its obligations under this Agreement.
7.4. The Customer agrees to be responsible for maintaining the confidentiality of its password and account details. Customer will advise Equifax immediately if a password has been disclosed to or used by an unauthorized person or entity.
8. Intellectual Property Rights
8.1. Except as expressly provided herein access to the Website and/ or Services does not grant the Customer any database rights or rights in the copyright, trademarks or any other Intellectual Property Rights of Creditsafe, Equifax, or any third party.
8.2. The Website and Services are protected by Intellectual Property Rights. All Intellectual Property Rights in or arising out of or in connection with the Website and/or Services shall be owned by Creditsafe, Equifax, or, where relevant, its and their third party subcontractors or the third party providers.
9. Representations and Warranties.
9.1. Equifax and/or Creditsafe makes no representations, warranties or guarantees other than those expressly set out in this Agreement and disclaims any implied warranty or representation that the Services and/or Website will meet the Customer's requirements, or that they are merchantable or fit for a particular purpose.
9.2. The Services are not intended to be used as the sole basis for any decision making and are based upon data which is provided by third parties, the accuracy of which it would not be possible for Equifax and/or Creditsafe to guarantee. The Services are provided on an "as is", as available, basis, and Equifax and/or Creditsafe gives the Customer no warranty or assurance about the contents of the Services. Whilst Equifax and/or Creditsafe endeavour to maintain the accuracy and the quality of the Services, information contained may be incorrect or out of date. Therefore any use of the Services is at the Customer’s own risk.
9.3. Further, credit reports providing details of companies based outside Canada are provided on a subject to availability basis, and the countries from which reports are available may vary throughout the term of this Agreement. Should any third party data become unavailable, Creditsafe and/or Equifax shall be entitled to, upon giving one months prior notice to the Customer, obtain a similar service from another third party supplier.
9.4. Equifax does not warrant that the Customer’s use of the Services and/or the Website will be uninterrupted or error-free and it (and/or Creditsafe) are not responsible for any, or any other loss or damage resulting from the transfer of data over communications networks and facilities, including the internet, and the Customer acknowledges that the Services may be subject to limitations, delays and other problems inherent in the use of such communications facilities. Equifax and/or Creditsafe shall have no liability (on any account whatsoever) to the Customer as a result of or related to such events.
9.5. Creditsafe, Equifax, and Customer each warrant that they have obtained and will continue to hold all necessary licenses, consents, permits and agreements required for it to comply with its obligations under this Agreement and for the grant of rights to the other party under this Agreement.
10. Data Protection.
10.1. Where the Customer accesses or receives any Personal Data (as defined in the EU General Data Protection 2016/679) through its use of or access to the Services and or Website, Creditsafe and Customer shall be bound by and agree to comply with the data protection and security provisions set out in this Clause 10 which shall include those provisions set out at https://www.creditsafe.com/us/en/product/terms/gdpr-terms-and-conditions.html which shall be read as a continuation of this Section 10.1 and shall form an integral part of this Agreement.
11. Notices.
11.1. All notices required under this Agreement must be given in writing and sent: (a) in the case of Equifax to: Attention: V.P. Legal Counsel, Equifax Canada Co. 5700 Yonge St., Suite 1501, Toronto, Ontario M2M 4K2 or by Fax: (416) 227-5273 or (b) in the case of Customer to the main point of contact provided by the Customer to Equifax at the point of onboarding. Either party may change its address or fax number at any time by giving notice to the other.
11.2. A notice is deemed to have been given:
11.2.1 If delivered personally, on the day it was delivered;
11.2.2 If sent by fax, on the date shown on the sender’s confirmation of transmission;
11.2.3 If sent by post, three (3) business days after it is mailed; and
11.2.4 If sent by any other method, upon written confirmation by a party that it was received.
12. Media Solutions
12.1. Neither Creditsafe nor Equifax is responsible for the quality or availability of the content produced by the media sources. Should any of the Media Solutions service and content be deemed to be infringing any law or right of a third party, Creditsafe and Equifax have the right to remove the infringing material without obtaining the Customer’s consent. Creditsafe and Equifax will be entitled to take all such steps that they consider to be necessary for the purpose of bringing an end to such infringement. Neither Creditsafe nor Equifax shall be liable for Customer’s negligence or misuse of the Media Solutions service or content from third parties. Where access to websites require payments, Customer will be responsible for paying the same.
13. Miscellaneous.
13.1. Any amendment to this Agreement must be in writing and signed by both parties.
13.2. The waiver of a breach of any provision of this Agreement will not operate or be interpreted as a waiver of any other or subsequent breach.
13.3. If any part of this Agreement is held to be invalid or unenforceable, that part will be severed and the rest of the agreement will remain in force.
13.4. Headings are for reference only.
13.5. Creditsafe and Equifax shall not be liable for failure to perform any obligation under this Agreement if such failure is caused by the occurrence of any unforeseen contingency or circumstances beyond the reasonable control of Creditsafe and/or Equifax, including without limitation Internet outages, communications outages, fire, flood war or act of God.
13.6. No party may use any other’s name, logo, or other marks or issue any press release or make any public statement regarding the other party including this Agreement without the other’s written consent.
13.7. The parties are independent contractors, and this Agreement does not create any agency, partnership, joint venture, employee-employer or franchisor-franchisee relationship between them. Neither party may make any warranties, representations or other promises on behalf of the other party.
13.8. Neither party may assign any part of this Agreement without the other’s written consent, which may not be unreasonably withheld.
13.9. This Agreement, the Order Confirmation and any applicable addendum, amendment, schedule, or statement of work described the entire understanding and agreement of the parties, and supersedes all oral and written agreements or understandings between them related to its subject matter.
13.10. This Agreement is governed by and will be interpreted under Ontario law (except of its choice of law provisions), and the parties submit to the exclusive jurisdiction of Ontario’s courts.
13.11. The parties acknowledge that they have required this Agreement and all related documents to be prepared in English only. Les parties reconnaissent avoir demandé que le présent contrat ainsi que tous les documents qui s'y rattachent soient rédigés uniquement en langue anglaise.
13.12. Customer acknowledges that it has read, understands and agrees with all of the provisions of this Agreement and, acknowledges that it has had the opportunity to obtain independent legal advice with respect to this Agreement.