Terms of Use

OLIU TERMS OF SERVICE

This Services Agreement (this “Agreement”), effective as of the date of signing of this Agreement (“Effective Date”), is by and between,ATB FINANCIAL, a corporation previously known as Alberta Treasury Branches established under the Alberta Treasury Branches Act and continued as a corporation under the name ATB Financial under the ATB Financial Act, having an office address at 10020 – 100th Street, Floor 21, Edmonton, Alberta T5J 0N3 (“ATB”) and the customer identified in the applicable Order Form (“Customer”).

DEFINITIONS.

1. “Account Administrator” has the meaning set forth in Section 2(b).
2. “Account Representative” has the meaning set forth in Section 2(b).
3. “Affiliate” means any entity that directly or indirectly controls, is controlled by, or is under common control with the subject entity. For the purposes of this definition, control means direct or indirect ownership or control of more than 50% of the voting interests of the entity or subject entity.
4. "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by ATB in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services, and general industry analysis that may be used for internal purposes. For greater certainty, Aggregated Statistics shall not contain any personally identifiable information and in no way identify any Customer or any End User, or include any identifiable Customer Data, End User Data, or Customer Confidential Information.
5. "ATB IP" means: (i) the Services, the ATB Technology, and all registered and unregistered rights granted, applied for, or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, industrial designs, trade secret, database protection, or other intellectual property provided to Customer or any User in connection with the foregoing; (ii) any copies, updates, improvements, enhancements, modifications, changes, and derivative works of the Services or the ATB Technology; (iii) ATP Confidential Information; and (iv) Aggregated Statistics. For the avoidance of doubt, ATB IP includes Aggregated Statistics and any information, data, or other content derived from ATB monitoring of Customer's access to or use of the Services, but does not include Customer Data or End User Data.
6. “ATB Technology”means the Solution, the Documentation, the Developer Portal, the Developer Materials and the Deliverables.
7. "Authorized User" means Customer's employees, consultants, contractors, and agents (i) who are authorized by Customer to access and use the Services under the rights granted to Customer pursuant to this Agreement; and (ii) for whom access to the Services has been purchased hereunder.
8. “Beta Services” has the meaning set forth in Section 2(l).
9. “Bots” has the meaning set forth in Section 2(e).
10. "Confidential Information" has the meaning set forth in 5(a).
11. "Customer Data" means information, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or an Authorized User through the Services or to ATB for use with the Services. For greater certainty, Customer Data shall not include Aggregated Statistics or End User Data.
12. “Decentralized Network” means any distributed ledger technology or blockchain network associated with the Services.
13. “Deliverables”means any customized deliverables or work product, reports, information or other materials provided by ATB in the provision of Professional Services.
14. “Developer”means a Customer that has submitted a request for certain developer rights from ATB that has been accepted or approved by ATB, at ATB’s sole discretion.
15. “Developer Materials”means the: (i) application programming interfaces (APIs) facilitating the unlocking identity issuance and verification by integration with Customer enterprise software; (ii) the standard development kits (SDKs) enabling Developers to easily integrate Digital Credentials directly into their mobile applications; and (iii) front-end web applications to sign up, create, issue and verify Digital Credentials.
16. “Developer Portal” means the proprietary ATB portal providing a suite of APIs, documentation and a sandbox environment for Developers to build and test applications for the Solution.
17. “Digital Credentials” shall mean any identity-related data or information of an End User.
18. “Digital Wallet” shall mean a virtual storage platform that can hold Digital Credentials or other secure information specific to an End User, which may be used for authentication and verification purposes or to perform transactions.
19. "Documentation" means ATB’s user manuals, handbooks, and guides relating to the Services provided by ATB to Customer either electronically or in hard copy form/end user documentation relating to the Services provided by ATB.
20. “End User(s)” means the individual(s) that will be connecting to the Customer through the Solution and/or whose End User Data will be managed by the Solution, and who are using a Digital Wallet for the purposes of storing and sharing Digital Credentials.
21. “End User Data” means the digital identification data of an End User that is used for the purpose of providing credentialing services or certifying End User access.
22. "Feedback" has the meaning set forth in Section 6(f).
23. "Fees" has the meaning set forth in Section 4(a).
24. “Incident” has the meaning set forth in Schedule B.
25. "Initial Term" has the meaning set forth in Section 11(a).
26. "Losses" has the meaning set forth in Section 9(a)(i).
27. "Notice" has the meaning set forth in Section 12(c).
28. "Order Form" means any order form or initiating ordering document entered into between the parties, similar in form to that provided in Schedule A to this Agreement.
29. “Privacy Statement” has the meaning set forth in the Recitals.
30. “Professional Services”means services other than the Solution Services that ATB performs or provides to the Customer, including the development and delivery of Deliverables specified on an applicable Order Form.
31. "Renewal Term" has the meaning set forth inSection 11(a).
32. “Security Event” has the meaning set forth in Section 5(d).
33. “Service Levels” means the standards of service set out by ATB in Schedule B to this Agreement.
34. "Service Suspension" has the meaning set forth in Section 2(g).
35. "Services" means the Solution Services, Professional Services, and any other services provided for under this Agreement or an applicable Order Form.
36. “Smart Contract” means a form of executable code on a Decentralized Network where a certain event or sequence of events triggers an automated response to complete a transaction.
37. “Solution” has the meaning set forth in the Recitals.
38. “Solution Services” has the meaning set forth in the Recitals.
39. "Term" has the meaning set forth in Section 11(a).
40. "Third-Party Claim" has the meaning set forth in Section 9(a)(i).
41. "Third-Party Products" means any third-party products described in the applicable Order Form or incorporated into the Services.
42. “Transaction” has the meaning set forth in Section 7(a).
43. “Transaction Ledger” has the meaning set forth in Section 7(a).

“User(s)”shall mean Authorized User(s) and/or End User(s).

SOLUTION AND SERVICES.

1. Services and Order Forms. Subject to and conditioned on Customer's payment of Fees and compliance with all other/the terms and conditions of this Agreement, ATB shall perform the Services as set out in the applicable Order Form to Customer. Each Order Form is automatically deemed to include all the terms and provisions of this Agreement. In the event of a conflict between this Agreement and an applicable Order Form, the Order Form shall take precedence only for the purposes of that Order Form and the terms and provisions of this Agreement are not otherwise amended, modified, cancelled, waived or released.

CUSTOMER RESPONSIBILITIES.

1. Co-operation. In addition to any obligations and responsibilities described in this Agreement or an Order Form, Customer will be responsible for providing ATB with all necessary information to enable ATB to perform the Services. Customer acknowledges and agrees that its failure to provide information, materials or approvals on a timely basis as reasonably requested by ATB under this Agreement will have a material impact on the provision of the Services and Deliverables, and that ATB shall not be responsible for any delays or failure to provide Services or Deliverables as a result of Customer’s failure to be responsive as reasonably required under this Agreement. Customer shall ensure that it makes available to ATB at all reasonable times, such information, resources, subject matter experts and responses as and when agreed to by the Parties in each Order Form and as ATB reasonably requests. Customer acknowledges that the Services and Deliverables are provided through close collaboration with Customer’s teams whose involvement is essential to the success of the Services and Deliverables. In the event there are any delays by Customer in fulfilling its responsibilities as stated above or there are errors or inaccuracies in the information provided, ATB shall be entitled to make reasonable schedule and pricing adjustments, as applicable.

FEES AND PAYMENT.

1. Fees. Customer shall pay ATB the fees ("Fees") as set forth in the Order Form without off-set or deduction. Customer shall make all payments hereunder in currency set out in the applicable Order Form on or before the due date set forth in the Order Form. If Customer fails to make any payment when due, without limiting ATB’s other rights and remedies: (i) ATB may charge interest on the past due amount at the rate of 1.5% per month or, if lower, the maximum amount permitted under applicable Law; (ii) Customer shall reimburse ATB for all reasonable costs incurred by ATB in collecting any late payments or interest, including legal fees, court costs, and collection agency fees; and (iii) if such failure continues for ten (10) days or more, ATB may suspend Customer's and its Users' access to any portion or all of the Services or ATB IP until such amounts are paid in full.

CONFIDENTIALITY, PRIVACY & SECURITY

1. Confidentiality. From time to time during the Term, either Party may disclose or make available to the other Party information about its business affairs, products, confidential intellectual property, trade secrets, third-party confidential information, and other sensitive or proprietary information, whether orally or in written, electronic, or other form or media/in written or electronic form or media, that is/and whether or not marked, designated, or otherwise identified as "confidential" (collectively, "Confidential Information"). Confidential Information does not include information that, at the time of disclosure is: (a) in the public domain; (b) known to the receiving Party at the time of disclosure; (c) rightfully obtained by the receiving Party on a non-confidential basis from a third party; or (d) independently developed by the receiving Party. The receiving Party shall not disclose the disclosing Party's Confidential Information to any person or entity, except to the receiving Party's employees who have a need to know the Confidential Information for the receiving Party to exercise its rights or perform its obligations hereunder. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (i) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making the disclosure pursuant to the order shall first have given written notice to the other Party and made a reasonable effort to obtain a protective order; or (ii) to establish a Party's rights under this Agreement, including to make required court filings. On the expiration or termination of the Agreement, the receiving Party shall promptly return to the disclosing Party all copies, whether in written, electronic, or other form or media, of the disclosing Party's Confidential Information, or destroy all such copies and certify in writing to the disclosing Party that such Confidential Information has been destroyed. Each Party's obligations of non-disclosure with regard to Confidential Information shall survive termination or expiration of this Agreement.
2. End User(s) must authorize their wireless carrier to use or disclose information about their account and their wireless device, if available, to ATB Financial or its service provider for the duration of their business relationship, solely to help them identify the End User(s) or their wireless device and to prevent fraud. See our Privacy Policy for how we treat Customer End User(s) data.

PROPRIETARY RIGHTS.

1. ATB IP. Customer acknowledges that, as between Customer and ATB, ATB owns all right, title, and interest, including all intellectual property rights, in and to the ATB IP and, with respect to Third-Party Products, the applicable third-party providers own all right, title, and interest, including all intellectual property rights, in and to the Third-Party Products.
2. Deliverables. All right title and interest, including all intellectual property rights, in and to the Deliverables (and all copies, updates, improvements, enhancements, modifications, changes, and derivative works in relation thereto) whether created solely by ATB or jointly by ATB and Customer during the Term of this Agreement, shall be and shall remain in ATB and shall vest in ATB upon their creation. Customer assigns and transfers and agrees to assign and transfer and cause any employee, affiliate or contractor to assign and transfer to ATB all such right, title and interest, worldwide, including all intellectual property rights, in such Deliverables, and Customer shall unequivocally waive, and shall cause each of its employees, affiliates and contractors to unequivocally waive, any moral rights in and to the works comprised in such Deliverables. ATB grants to Customer a limited, royalty-free, revocable, non-exclusive, non-transferable (except in compliance with section 11(j)), worldwide license to use and access the Deliverables, as applicable, for Customer’s internal business purposes.
3. Open Source. The ATB IP may contain or be provided together with free or open-source software. Notwithstanding Sections 2(d), 2(g), 6(a) and 6(b), each item of free or open-source software is subject to its own applicable license terms, or in the applicable documentation or the applicable help, notices, about or source files as required by the terms of the applicable open-source license. Copyrights to the free and open-source software are held by the respective copyright holders indicated therein.
4. Customer Data. ATB acknowledges that, as between ATB and Customer, Customer owns all right, title, and interest, including all intellectual property rights, in and to the Customer Data. Customer hereby grants to ATB a non-exclusive, royalty-free, worldwide licence to reproduce, distribute, and otherwise use, modify, access and display the Customer Data and perform all acts with respect to the Customer Data as may be necessary for ATB to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, royalty-free, worldwide licence to reproduce, distribute, modify, create derivative works of and otherwise use and display Customer Data incorporated within the Aggregated Statistics, including anonymizing and aggregating any Customer Data such that it no longer contains any information that identifies the Customer or, End User, as the case may be.
5. End User Data. ATB acknowledges that it has no right, title and interest, including any intellectual property rights, in and to the End User Data. End User Data shall be processed in accordance with the terms of use for the specific Digital Wallet application used by the End User.

Feedback. At your option you may provide feedback, suggestions, recommendations, and corrections to ATB about the Solution and other ATB products and services or otherwise in connection with the Agreement, including by responding to surveys and questionnaires (“Feedback”). You grant to ATB and its affiliates a worldwide, perpetual, irrevocable, royalty-free, transferable, sublicensable (through multiple tiers) license to use the Feedback without restriction and without obligation to you, including to incorporate the Feedback into ATB’s products and services.

DECENTRALIZED NETWORKS.

1. The Parties acknowledge and agree that, to facilitate the Services and provide access to the ATB Technology, ATB will endorse and write digitally signed transactions authored by Customer on a Decentralized Network (the “Transaction Ledger”), as further described in Section 7(b). Where the transaction is written on the Sovrin Transaction Ledger, in order to receive the Services, Customer must agree to the Sovrin Transaction Author Agreement located at: https://sovrin.org/wp-content/uploads/Transaction-Author-Agreement-V2.pdf. Where the transaction is written on the Indicio Transaction Ledger, in order to receive the Services, Customer must agree to the Indicio Transaction Author Agreement located at: https://github.com/Indicio-tech/indicio-governance/blob/main/Indicio%20Transaction%20Author%20Agreement.pdf. ATB may write records to the Transaction Ledger (each, a “Transaction”) on behalf of Customer, provided that Customer shall not author Transactions to be written by ATB containing personal information or any form of personally identifiable information. Customer agrees to accept all liability for the contents of such Transactions. Customer hereby represents and warrants that content submitted by Customer to the Services requiring endorsement will be endorsed by ATB automatically and programmatically, and that ATB has no ability or process by which to inspect or censor the content of Transactions authored by Customer. Customer acknowledges and agrees that all content submitted through the Services complies with this Agreement and any agreements Customer enters into with the administrators of the Transaction Ledger, including the Sovrin Transaction Author Agreement or Indicio Transaction Author Agreement, as the case may be. ATB reserves the right to provide the Services using an alternate Decentralized Network in its sole discretion, upon reasonable notice to Customer. Upon such notice, Customer will execute all relevant documents with the administrator of such Decentralized Network.
2. Certain Customer Data may be processed on the Transaction Ledger, as further described in the Privacy Statement. By design, a Decentralized Network’s records cannot be changed or deleted and are said to be ‘immutable’. Although Smart Contracts may be used to revoke certain access rights, and some content may be made invisible to others, it is not deleted. This may affect Customer’s ability to exercise its rights such as Customer’s right to erasure (“right to be forgotten”), to object or restrict processing, of Customer Data, such as Digital Wallet addresses. Customer acknowledges and agrees that it shall not author Transactions to be written by ATB containing personal information or any form of personally identifiable information. Any attempt by Customer to use the Services to write any personal information to the Sovrin Ledger may result, at ATB’s sole discretion, revocation of Customer’s right to use the Services and the ATB IP and/or termination of this Agreement.

WARRANTY AND DISCLAIMER.

1. Warranties for Solution Services. ATB warrants that during an applicable Solution Term, the Solution Services will perform materially in accordance with the applicable Documentation. For any breach of this warranty, Customer’s exclusive remedy and ATB’s entire liability will be for ATB to use commercially reasonable efforts to cause the Services to comply with the warranty within a reasonable period of time after receipt of notice in writing from Customer, or termination of this Agreement and payment to Customer of a refund to the extent specified in the applicable Order Form. For greater certainty, ATB makes no representation or warranty regarding uptime or availability of the Solution Services or the ATB Technology unless otherwise specified in Schedule B to this Agreement.
2. Warranties for Professional Services. ATB warrants that the Professional Services will be performed in a professional and workmanlike manner in accordance with generally accepted industry standards. For any breach of this warranty, Customer’s exclusive remedy and ATB’s entire liability will be the re-performance of the applicable portion of the Professional Services. If ATB is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services fees paid to ATB for the deficient Professional Services. Customer must make any claim under this warranty to ATB in writing within thirty (30) days of the delivery of the applicable work in order to receive warranty remedies under this Section 8(b).
3. Proper Use. The warranties set out in Sections 8(a) and 8(b) are subject to Customer’s proper use of the Services and the ATB IP and compliance with any other Customer obligations under this Agreement or an applicable Order Form. The warranties set out in this Section 8 shall not apply where: (i) the Customer has misused the Services or the ATB Technology; (ii) where the Customer uploads, transmits or incorporates any information that contains personally identifiable information of any individual to the Decentralized Network; (iii) where the warranty issue arising is a result of use of the Services or ATB Technology in combination with data, software, hardware, equipment, or technology not provided by ATB or authorized by ATB in writing; (iv) modifications to the Services or ATB Technology not made by ATB; (v) the issue arises from the Customer Data or End User Data; or (vi) the issue arises from the use of Third-Party Products.
4. NO FURTHER WARRANTIES AND DISCLAIMER. EXCEPT AS EXPRESSLY PROVIDED UNDER THIS AGREEMENT, THE SERVICES AND ATB IP IS PROVIDED "AS IS" AND “AS AVAILABLE” AND ATB HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. ATB SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ATB MAKES NO WARRANTY OF ANY KIND THAT THE ATB IP, OR ANY SERVICES OR RESULTS OF THE USE THEREOF, WILL MEET CUSTOMER'S OR ANY OTHER PERSON'S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OR OTHER SERVICES, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE.
5. FURTHER DISCLAIMER. ATB WILL NOT BE RESPONSIBLE OR LIABLE TO CUSTOMER FOR ANY LOSSES INCURRED AS THE RESULT OF YOUR USE OF THE DECENTRALIZED NETWORK, OR ANY THIRD-PARTY DIGITAL WALLET, INCLUDING BUT NOT LIMITED TO ANY LOSSES, DAMAGES OR CLAIMS ARISING FROM: (A) USER ERROR, SUCH AS FORGOTTEN PASSWORDS OR INCORRECTLY CONSTRUED SMART CONTRACTS OR OTHER TRANSACTIONS; (B) SERVER FAILURE OR DATA LOSS; (C) CORRUPTED DIGITAL WALLET FILES; OR (D) UNAUTHORIZED ACCESS OR ACTIVITIES BY THIRD PARTIES, INCLUDING, BUT NOT LIMITED TO, THE USE OF VIRUSES, PHISHING, BRUTE-FORCING OR OTHER MEANS OF ATTACK AGAINST THE ATB IP, THE DECENTRALIZED NETWORK, OR ANY DIGITAL WALLET. ATB IS NOT RESPONSIBLE OR LIABLE FOR ANY SUSTAINED LOSSES OR INJURY DUE TO VULNERABILITY OR ANY KIND OF FAILURE, ABNORMAL BEHAVIOR OF SOFTWARE (E.G., DIGITAL WALLET, SMART CONTRACT), DECENTRALIZED NETWORKS OR ANY OTHER FEATURES OF THE DECENTRALIZED NETWORKS. ATB IS NOT RESPONSIBLE FOR LOSSES OR INJURY DUE TO LATE REPORTS BY DEVELOPERS OR REPRESENTATIVES (OR NO REPORT AT ALL) OF ANY ISSUES WITH THE DECENTRALIZED NETWORK OR TRANSACTION LEDGERS, INCLUDING FORKS, TECHNICAL NODE ISSUES OR ANY OTHER ISSUES HAVING LOSSES OR INJURY AS A RESULT.

INDEMNIFICATION.

1. ATB Indemnification.

   1. ATB shall indemnify, defend, and hold harmless Customer from and against any and all losses, damages, liabilities, costs (including reasonable legal fees) ("Losses") incurred by Customer resulting from any third-party claim, suit, action, or proceeding ("Third-Party Claim") that the Services, the ATB IP or any use of the Services or ATB IP in accordance with this Agreement, infringes, violates or misappropriates such third party's Canadian intellectual property rights/Canadian patents, trade-marks, copyrights, or trade secrets, provided that Customer promptly notifies ATB in writing of the claim, cooperates with ATB, and allows ATB sole authority to control the defense and settlement of such claim.
   2. If such a claim is made or appears possible, Customer agrees to permit ATB, at ATB’s sole discretion, to (A) modify or replace the Services, or component or part thereof, to make it non-infringing, or (B) obtain the right for Customer to continue use. If ATB determines that neither alternative is reasonably available, ATB may terminate this Agreement, in its entirety or with respect to the affected component or part, effective immediately on written notice to Customer.
   3. This Section 9(a) will not apply to the extent that the alleged infringement arises from: (A) use of the Services in combination with data, software, hardware, equipment, or technology not provided by ATB or authorized by ATB in writing; (B) modifications to the Services not made by ATB; (C) Customer Data; or (D) Third-Party Products.
   4. THIS 9(A) SETS FORTH CUSTOMER'S SOLE REMEDIES AND ATB’S SOLE LIABILITY AND OBLIGATION FOR ANY ACTUAL, THREATENED, OR ALLEGED CLAIMS THAT THE SERVICES INFRINGE, MISAPPROPRIATE, OR OTHERWISE VIOLATE ANY INTELLECTUAL PROPERTY RIGHTS OF ANY THIRD PARTY.

2. Customer Indemnification. Customer shall indemnify, hold harmless, and, at ATB’s option, defend ATB from and against any Losses resulting from any Third-Party Claim that the Customer Data, or any use of the Customer Data in accordance with this Agreement, infringes, violates or misappropriates such third party's intellectual property or privacy rights and any Third-Party Claims based on Customer's or any Authorized User's (i) negligence or wilful misconduct; (ii) use of the Services or the ATB IP in a manner not authorized by this Agreement; (iii) use of the Services or the ATB IP in combination with data, software, hardware, equipment or technology not provided by ATB or authorized by ATB in writing; or (iv) modifications to the Services or the ATB IP not made by ATB, provided that Customer may not settle any Third-Party Claim against ATB unless ATB consents to such settlement, and further provided that ATB will have the right, at its option, to defend itself against any such Third-Party Claim or to participate in the defence thereof by counsel of its own choice.

LIMITATIONS OF LIABILITY.

IN NO EVENT WILL ATB BE LIABLE UNDER OR IN CONNECTION WITH THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, AGGRAVATED, OR PUNITIVE DAMAGES; (b) INCREASED COSTS, DIMINUTION IN VALUE, OR LOST BUSINESS, PRODUCTION, REVENUES, OR PROFITS; (c) LOSS OF GOODWILL OR REPUTATION; (d) USE, INABILITY TO USE, LOSS, INTERRUPTION, DELAY OR RECOVERY OF ANY DATA, OR BREACH OF DATA OR SYSTEM SECURITY; OR (e) COST OF REPLACEMENT GOODS OR SERVICES, IN EACH CASE REGARDLESS OF WHETHER CUSTOMER WAS ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE. IN NO EVENT WILL ATB’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE EXCEED THE TOTAL AMOUNTS PAID AND AMOUNTS ACCRUED BUT NOT YET PAID TO ATB UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.

TERM AND TERMINATION.

1. Term.

   1. The initial term of this Agreement shall be set out in the applicable Order Form (the "InitialTerm"). Where applicable, this Agreement will renew as set out in the applicable Order Form earlier terminated pursuant to this Agreement's express provisions (each a "Renewal Term" and together with the Initial Term, the "Term").
   2. The Solution Services shall commence on the date where ATB provides access to the Solution and shall continue for the term set out in the applicable Order Form (the “Solution Term”).
   3. Except as otherwise specified, the Professional Services shall expire automatically upon (A) fulfillment of the last milestone as stated in the applicable Order Form; (B) the termination of the applicable Order Form in accordance with the terms thereof; or (C) the termination or expiration of the Solution Services. If custom functionality is provided as Professional Services under an applicable Order Form that, in whole or in part, becomes available as part of a standard product or paid features maintained by ATB, then, subject to Customer’s payment of mutually agreed-to fees for the same, (Y) ATB may migrate Customer to use such functionality or feature on the standard ATB product, and (Z) ATB is not required to maintain that custom functionality under such Order Form; provided that Customer may terminate this Agreement if the Parties fail to agree to such fees in accordance with Section 11(b).

2. Termination. In addition to any other express termination right set forth in this Agreement:

   1. ATB may terminate this Agreement or any Order Form at any time by providing Customer advance written notice thereof;
   2. either Party may terminate this Agreement, effective on written notice to the other Party, if the other Party materially breaches this Agreement, and such breach: (A) is incapable of cure; or (B) being capable of cure, remains uncured thirty (30) days after the non-breaching Party provides the breaching Party with written notice of such breach; or
   3. either Party may terminate this Agreement, effective immediately upon written notice to the other Party, if the other Party: (A) becomes insolvent or is generally unable to pay, or fails to pay, its debts as they become due; (B) files or has filed against it, a petition for voluntary or involuntary bankruptcy or otherwise becomes subject, voluntarily or involuntarily, to any proceeding under any domestic or foreign bankruptcy or insolvency law; (C) makes or seeks to make a general assignment for the benefit of its creditors; or (D) applies for or has appointed a receiver, trustee, custodian, or similar agent appointed by order of any court of competent jurisdiction to take charge of or sell any material portion of its property or business.

3. Effect of Expiration or Termination. Upon expiration or earlier termination of this Agreement,

   1. Customer shall immediately discontinue use of the ATB IP and the Services and, without limiting Customer's obligations under 6,
   2. Customer shall delete, destroy, or return all copies of the ATB IP and certify in writing to the ATB that the ATB IP has been deleted or destroyed.
   3. Where this Agreement or any applicable Order Form is terminated by Customer for material breach by ATB, then ATB will refund Customer any prepaid Fees covering the remainder of the Term and any Solution Term.
   4. Where this Agreement or any applicable Order Form is terminated by ATB for material breach by Customer, then Customer will pay to ATB an amount equal to the aggregate of all unpaid Fees (if any) that would otherwise be payable under the applicable Order Form for the remainder of the Term and any Solution Term.
   5. 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 for Services provided prior to the expiration or termination.

4. Customer Data. Upon request by Customer made within thirty (30) days after the effective date of termination or expiration of the applicable Term, ATB will make Customer Data related to the Services for which has expired or been terminated, available to Customer. After such 30-day period, ATB will have no obligation to maintain, provide or make available such Customer Data, and may thereafter delete or destroy all copies of the Customer Data in its systems or otherwise in its possession or control, unless legally prohibited from doing so.

5. Survival. 1, Section 2(g), Section 2(i), 4, 5, 6, Section 7, 8, 9, Section 10, 11 and Section 12 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.

GENERAL.

1. Entire Agreement. This Agreement, together with any other documents incorporated herein by reference and all related Schedules, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and, except where the Parties enter into a written agreement expressly stating that said written agreement supersedes all other agreements, this Agreement supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, including any proposals, price quotes, click-wrap agreements, or non-disclosure agreements.
2. Relationship of the Parties. The parties are independent contractors unless otherwise expressly agreed upon in a separate agreement. Unless otherwise agreed, this Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties. Each party will be solely responsible for payment of all compensation owed to its employees, as well as all employment-related taxes.
3. Notices. All notices, requests, consents, claims, demands, waivers, and other communications hereunder (each, a "Notice") must be in writing and addressed to the Parties at the addresses set forth on the first page of this Agreement (or to such other address that may be designated by the Party giving Notice from time to time in accordance with this Section). Notices sent in accordance with this Section will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by a nationally recognized overnight courier, signature required; (c) when sent, if by facsimile or email] (in each case, with confirmation of transmission) if sent during the addressee's normal business hours, and on the next business day if sent after the addressee's normal business hours; and (d) on the third business day after the date mailed by certified or registered mail by the Canada Post Corporation, return receipt requested, postage prepaid.
4. Force Majeure. In no event shall ATB be liable to Customer, or be deemed to have breached this Agreement, for any failure or delay in performing its obligations under this Agreement, if and to the extent such failure or delay is caused by any circumstances beyond ATB’s reasonable control, including but not limited to acts of God, epidemics, pandemics, including the 2019 novel coronavirus disease (COVID-19) pandemic, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns or other industrial disturbances, interruptions, loss or malfunction of data, utilities, communications, internal or other computer (hardware, software, or system) services or facilities, or passage of law or any action taken by a governmental or public authority, including imposing an embargo (“Force Majeure Event”). The Parties will meet and confer in good faith to determine the best solution to limit the consequences of any Force Majeure Event. Notwithstanding the foregoing, to the extent that ATB’s performance hereunder is delayed by a Force Majeure Event for more than one (1) month, then Customer may immediately terminate this Agreement upon written notice to ATB.
5. Amendments and Modifications. No amendment to or modification of this Agreement is effective unless it is in writing and signed by an authorized representative of each Party.
6. Waiver. No waiver by any Party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the Party so waiving. Except as otherwise set forth in this Agreement, (i) no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof, and (ii) no single or partial exercise of any right, remedy, power, or privilege hereunder will preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
7. Severability. If any provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
8. Governing Law. This Agreement and all related documents including all exhibits attached hereto, and all matters arising out of or relating to this Agreement, whether sounding in contract, tort, or statute, are governed by, and construed in accordance with, the laws of the Province of Alberta and the federal laws of Canada applicable therein, without giving effect to any choice or conflict of law provision or rule (whether of the Province of Ontario or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the Province of Ontario.
9. Choice of Forum. Any legal suit, action, litigation, or proceeding of any kind whatsoever in any way arising out of, from or relating to this Agreement, including all statements of work, exhibits, schedules, attachments, and appendices attached to this Agreement, the services provided hereunder, and all contemplated transactions, shall be instituted in the courts of the city of Calgary in the Province of Alberta, and each Party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action, litigation, or proceeding. Service of process, summons, notice, or other document by mail to such Party's address set forth herein shall be effective service of process for any suit, action, litigation, or other proceeding brought in any such court. Each Party agrees that a final judgment in any such suit, action, litigation, or proceeding is conclusive and may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law. The Parties irrevocably and unconditionally waive any objection to the venue of any action or proceeding in such courts and irrevocably waive and agree not to plead or claim in any such court that any such action or proceeding brought in any such court has been brought in an inconvenient forum.
10. Assignment. Customer may not assign any of its rights or delegate any of its obligations hereunder, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without the prior written consent of ATB. Any purported assignment or delegation in violation of this Section by Customer will be null and void. No assignment or delegation will relieve the assigning or delegating Party of any of its obligations hereunder. This Agreement is binding upon and inures to the benefit of the Parties and their respective permitted successors and assigns.
11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under 5 or, in the case of Customer, Section 2(c) and Section 3, would cause the other Party irreparable harm for which monetary damages would not be an adequate remedy and agrees that, in the event of such breach or threatened breach, the other Party will be entitled to equitable relief, including a restraining order, an injunction, specific performance, and any other relief that may be available from any court, without any requirement to post a bond or other security, or to prove actual damages or that monetary damages are not an adequate remedy. Such remedies are not exclusive and are in addition to all other remedies that may be available at law, in equity or otherwise.
12. Cumulative Remedies. Except as expressly set forth in this Agreement or any applicable Order Form, the rights and remedies provided hereunder are cumulative and are in addition to and not in substitution of any other rights and remedies available at law, in equity or otherwise.
13. Publicity. ATB may use Customer’s name or logo or refer to Customer directly or indirectly in a media release, public announcement or public disclosure relating to this Agreement or its subject matter, including any promotional or marketing materials, client lists, referral lists or business presentations, without prior written consent from Customer.
14. Counterparts. This Agreement may be executed in counterparts, each of which is deemed an original, but all of which together are deemed to be one and the same agreement.

SCHEDULE A

Sample Order Form

This Order Form (“Order”) forms an integral part of, and is made and issued under and pursuant to the Oliu Terms of Services betweenATB FINANCIAL(“ATB”) and THE CUSTOMER IDENTIFIED BELOW (“Customer”) dated on or about the date of this Order Form (the “Agreement”). All of the provisions of the Agreement are expressly incorporated into this Order Form as if set out herein at full length, except solely to the extent specific provisions of the Agreement are expressly amended, deleted or supplemented in this Order Form in accordance with the terms and conditions of the Agreement. All capitalized terms used in this Order, and not otherwise defined herein, have the meaning ascribed to such terms in the Agreement, unless the context otherwise requires. In addition, the provisions set out below form part of this Order.

The parties agree as follows:

Customer Billing Contact Information:

Billing Terms:

Services:

Customer orders the following Services:

Term:

The term of this Order Form shall commence on the Effective Date and the Services will be provided for a period of [●] [MONTHS/YEARS] ending on [INSERT END DATE]. The term of this Order Form shall automatically renewal in [●] month increments, unless otherwise terminated by a party in accordance with the Agreement.

Fees:

For the ordered Services, Customer will pay the following fees:

Solution fees are payable in advance for each billing period.

All invoices shall be due and payable within thirty (30) days of receipt of invoice.

To confirm their agreement, the parties have signed this Order Form as of the Effective Date.

SCHEDULE B

Services Levels and Support Services

Service Levels

1. Availability. ATB will use commercially reasonable efforts to ensure that the Solution Services will be available at all times, excluding when the Solution Services are unavailable due to (a) required system maintenance as determined by ATB (“ScheduledMaintenance”); and (b) causes outside of the reasonable control of ATB that could not have been avoided by its exercise of due care, including any outages caused by: (i) the Internet in general; (ii) a Customer-caused event; or (iii) any Force Majeure Event (“Availability”).
2. Scheduled Maintenance. A minimum of five days’ advance notice will be provided by email to Customer for all Scheduled Maintenance exceeding two hours. For Scheduled Maintenance lasting less than two hours, notice will be displayed on the login page.

Support Services

1. An “Incident” is declared by ATB when any of the following occurs:

   1. A malfunction, disruption, or unlawful use of the Services;
   2. The loss or theft of Customer Data from the Services;
   3. Unauthorized access to Customer Data, information storage, or a computer system; or
   4. Material delays or the inability to use the Services.

2. An Incident involving the loss or unauthorized access of Customer Data, not due to Customer’s errors or omissions, will always be categorized as Code Red. In such a case, Customer will be notified as expeditiously as possible after a disclosure is discovered. ATB will conduct a formal investigation and will deliver an official written report to Customer within two weeks of the Incident.

3. Incidents are prioritized as set forth in the Incident Level Table below.

Incident Level Table