Terms of Service

• Last Updated: March 3, 2021

Recitals

WHEREAS Sokanu is the developer and owner of the Sokanu SaaS Services (as defined below), a unique and proprietary career and education analytics platform provided as a software-as-a-service;
WHEREAS Customer is an educational institution or organization
AND WHEREAS Customer desires to use the Sokanu SaaS Services, and Sokanu has agreed to make available the Sokanu SaaS Services for Customer’s use;
NOW THEREFORE, in consideration of the premises, covenants and agreements herein contained, the Parties agree as follows:

Definitions

“Agreement” means this Sokanu software-as-a-service agreement and all Order Forms executed by both Parties.
“Customer Data” means any data, information, content, records, and files that Customer (or any of its Users) loads, receives through, transmits to or enters into the Sokanu SaaS Services.
“Customer Website” has the meaning set out in the recitals.
“Fees” has the meaning set out in Section 6.
“Modifications” means modifications, improvements, customizations, updates, enhancements, aggregations, compilations, derivative works, translations and adaptations, and “Modify” has a corresponding meaning.
“Order Form” means the order form set out at Exhibit A, or any additional order form that references this Agreement once executed by both Parties.
“Personal Information” means information about an identifiable individual.
“Sokanu SaaS Services” means services through which Sokanu hosts and makes available its proprietary career self-assessment and profiling platform and all Modifications thereto.
“Sokanu Services” means the Sokanu SaaS Services and other related products and services made available by Sokanu under this Agreement, collectively, and any part thereof.
“Term” has the meaning set out in Section 10(a).
“User” means any third party permitted by Customer to use the Sokanu SaaS Services through the Customer Website.

Sokanu SaaS Services

Provisioning of the Sokanu SaaS Services. Subject to Customer’s compliance with the terms and conditions of this Agreement, including the payment of all Fees set out in any applicable Order Forms, Sokanu will make the Sokanu SaaS Services available to Customer for use by Customer and all Users, including the service levels set out in Exhibit B, for the period of time set out in such Order Forms.
Minimum Terms with Users. Customer will ensure that all Users have entered into an agreement with Customer that is no less protective of Sokanu and the Sokanu Services as this Agreement.
Restrictions on Use. Except as permitted in Section 2(a), Customer must not itself, and will not permit others (including Users) to:
1. sub-license, sell, rent, lend, lease or distribute the Sokanu SaaS Services or any intellectual property rights therein or otherwise make the Sokanu SaaS Services available to others;
2. use the Sokanu SaaS Services to permit timesharing, service bureau use or commercially exploit the Sokanu SaaS Services;
3. use or access the Sokanu SaaS Services in violation of any applicable law or intellectual property right, in a manner that threatens the security or functionality of the Sokanu SaaS Services, or for any purpose or in any manner not expressly permitted in this Agreement;
4. use the Sokanu SaaS Services to create, collect, transmit, store, use or process any Customer Data:
5. that contains any computer viruses, worms, malicious code, or any software intended to damage or alter a computer system or data;
6. that Customer does not have the lawful right to create, collect, transmit, store, use or process; or
7. that violates any applicable laws, or infringes, violates or otherwise misappropriates the intellectual property or other rights of any third party (including any moral right, privacy right or right of publicity);
8. Modify the Sokanu SaaS Services;
9. reverse engineer, de-compile or disassemble the Sokanu SaaS Services;
10. remove or obscure any proprietary notices or labels on the Sokanu SaaS Services, including brand, copyright, trademark and patent or patent pending notices;
11. access or use the Sokanu SaaS Services for the purpose of building a similar or competitive product or service; or
12. perform any vulnerability, penetration or similar testing of the Sokanu SaaS Services.
Suspension of Access; Scheduled Downtime; Modifications. Sokanu may, at its discretion:
1. suspend Customer’s access to or use of the Sokanu SaaS Services or any component thereof:
2. for scheduled maintenance;
3. if Customer violates any provision of this Agreement; or
4. to address any emergency security concerns; and
5. Modify the Sokanu SaaS Services. For greater certainty, Customer is required to accept all patches, bug fixes and updates made by or on behalf of Sokanu to the Sokanu SaaS Services.

Ownership; Reservation of Rights

Customer retains all ownership and intellectual property rights in and to Customer Data. Customer grants to Sokanu a nonexclusive, worldwide, royalty-free, irrevocable, fully paid-up right to use, process and transmit Customer Data to provide the Sokanu Services. Sokanu may collect and analyze data and other information relating to the provision, use and performance of the Sokanu Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and during and after the Term of this Agreement, Sokanu may: (i) use such data and information to improve and enhance the Sokanu Services and for other development, diagnostic and corrective purposes in connection with the Sokanu Services and other Sokanu offerings; and (ii) use and disclose such data solely in aggregated or other de-identified form in connection with its business.
Sokanu or its licensors retain all ownership and intellectual property rights in and to: (i) the Sokanu Services; (ii) anything developed or delivered by or on behalf of Sokanu under this Agreement; and (iii) any Modifications to the foregoing (i) and (ii) (collectively, the “Sokanu Property”).
All rights not expressly granted by a Party to the other Party under this Agreement are reserved.

Privacy

Customer agrees (on Customer’s behalf and on behalf of each User) to Sokanu’s access, use, collection, storage and disclosure of Customer’s and each User’s Personal Information for the purposes authorized under this Agreement. Customer understands that Personal Information, including the Personal Information of Users, will be treated in accordance with Sokanu’s privacy policy located at www.careerexplorer.com/privacy (the “Privacy Policy”).

Standard Maintenance and Support

Subject to Customer’s payment of all fees described in all applicable Order Forms and for the period of time set out in such Order Forms, Customer will:

receive maintenance and updates, at Sokanu’s sole discretion, to the Sokanu SaaS Services from time to time; and
have access to Sokanu’s technical support through: (i) Sokanu’s web resource centre located at www.careerexplorer.com/faqs/; (ii) twitter at Sokanu’s Twitter account located at @sokanu; and (iii) Sokanu’s technical support email at contact@sokanu.com.

Fees and Payment

Fees. Without limited this Section 6, Customer will pay to Sokanu the fees described in any Order Form (the “Fees”) in accordance with the terms set out therein. If Customer’s use of the Sokanu SaaS Services exceeds the service capacity set forth on an Order Form or otherwise requires the payment of additional fees (pursuant to the terms of this Agreement), Customer will be billed for such usage and Customer will pay the additional fees in accordance with this Agreement. Unless otherwise noted on an Order Form, all Fees are identified in United States Dollars and are payable in advance.
Invoicing. Sokanu will prepare and send to the Customer, at the then-current contact information on file with Sokanu, 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 45 calendar days of the invoice date.
Disputed Invoices or Charges. If Customer believes Sokanu has charged or invoiced Customer incorrectly, Customer must contact Sokanu no later than 45 days after having been charged by Sokanu or receiving such invoice in which the error or problem appeared in order to request an adjustment or credit. In the event of a dispute, Customer will pay any undisputed amounts in accordance with the payment terms herein, and the Parties will discuss the disputed amounts in good faith in order to resolve the dispute.
Late Payment. Customer may not withhold or setoff any amounts due under this Agreement. Sokanu reserves the right to suspend Customer’s access to the Sokanu SaaS Services until all due amounts are paid in full.
Taxes. The Fees set out in this Agreement do not include applicable sales, use, gross receipts, value-added, GST or HST, personal property or other taxes. Customer is generally not subject to any sales or excise taxes.
Suspension. Any suspension of the Sokanu Services by Sokanu pursuant to the terms of this Agreement will not excuse Customer from its obligation to make payments under this Agreement.

Confidential Information

Definitions. For the purposes of this Agreement, a Party receiving Confidential Information (as defined below) will be the “Recipient”, the Party disclosing such information will be the “Discloser” and “Confidential Information” means information marked or otherwise identified in writing by a Party as proprietary or confidential, or information that, under the circumstances surrounding the disclosure, Recipient should recognize as being confidential; provided that Discloser’s Confidential Information does not include: (i) information already known or independently developed by Recipient without access to Discloser’s Confidential Information; (ii) information that is publicly available through no wrongful act of Recipient; or (iii) information received by Recipient from a third party who was free to disclose it without confidentiality obligations.
Confidentiality Covenants. Recipient hereby agrees that during the Term and at all times thereafter it will not: (i) disclose Confidential Information of Discloser to any person, except to its own personnel or affiliates having a “need to know” and that have entered into written agreements no less protective of such Confidential Information than this Agreement, and to such other recipients as the Discloser may approve in writing; (ii) use Confidential Information of Discloser except to exercise its license rights or perform its obligations under this Agreement; or (iii) alter or remove from any Confidential Information of the Discloser any proprietary legend. Each Party will take reasonable precautions to safeguard the other Party’s Confidential Information. Those precautions will be at least as great as the precautions that the Recipient takes to protect its own Confidential Information of a similar type.
Exceptions to Confidentiality. Notwithstanding Section 7(b), Recipient may disclose Discloser’s Confidential Information: (i) to the extent that such disclosure is required by applicable law or by the order of a court or similar judicial or administrative body, provided that, except to the extent prohibited by law, Recipient promptly notifies Discloser in writing of such required disclosure and cooperates with Discloser to seek an appropriate protective order; (ii) to its legal counsel and other professional advisors if and to the extent such persons need to know such Confidential Information in order to provide applicable professional advisory services in connection with the Party’s business; or (iii) in the case of Sokanu, to potential assignees, acquirers or successors of Sokanu 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 Sokanu.

Warranty; Disclaimer; Indemnity

Customer Warranty. Customer represents and warrants to, and covenants with Sokanu that the Customer Data will only contain Personal Information in respect of which Customer has provided all notices and disclosures (including to each User), obtained all applicable third party consents and permissions and otherwise has all authority, in each case as required by applicable laws, to enable Sokanu to provide the Sokanu SaaS Services, including with respect to the collection, storage, access, use, disclosure and transmission of Personal Information, including by or to Sokanu and to or from all applicable third parties.
GENERAL DISCLAIMER. SOKANU DOES NOT WARRANT THAT THE SOKANU SERVICES WILL BE UNINTERRUPTED OR ERROR FREE OR THAT ALL ERRORS CAN OR WILL BE CORRECTED; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SOKANU SERVICES. EXCEPT AS SPECIFICALLY PROVIDED IN THIS AGREEMENT, THE SOKANU SERVICES (OR ANY PART THEREOF), AND ANY OTHER PRODUCTS AND SERVICES PROVIDED BY SOKANU TO CUSTOMER (INCLUDING ALL THIRD PARTY PRODUCTS AND SERVICES) ARE PROVIDED “AS IS” AND “AS AVAILABLE”.

TO THE EXTENT PERMITTED BY APPLICABLE LAW, SOKANU HEREBY DISCLAIMS ALL EXPRESS, IMPLIED, COLLATERAL OR STATUTORY WARRANTIES, REPRESENTATIONS AND CONDITIONS, WHETHER WRITTEN OR ORAL, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, COMPATIBILITY, TITLE, NON-INFRINGEMENT, SECURITY, RELIABILITY, COMPLETENESS, QUIET ENJOYMENT, ACCURACY, QUALITY, INTEGRATION OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WITHOUT LIMITING THE GENERALITY OF ANY OF THE FOREGOING, SOKANU EXPRESSLY DISCLAIMS ANY REPRESENTATION, CONDITION OR WARRANTY THAT ANY DATA OR INFORMATION (INCLUDING ALL THIRD PARTY INFORMATION) PROVIDED TO CUSTOMER IN CONNECTION WITH CUSTOMER’S USE OF THE SOKANU SERVICES (OR ANY PART THEREOF) IS ACCURATE, OR CAN OR SHOULD BE RELIED UPON BY CUSTOMER FOR ANY PURPOSE WHATSOEVER.

Customer will defend, indemnify and hold harmless Sokanu, its employees, officers, directors, affiliates, agents, contractors, successors, and assigns against any and all third party (including Users) liability (including damages, recoveries, deficiencies, interest, penalties and legal fees), directly or indirectly arising from or in connection with: (i) Customer Data; (ii) Customer’s breach of any of Customer’s obligations, representations or warranties under this Agreement; or (iii) use of the Sokanu Services (or any part thereof) by Customer or any User in combination with any third party software, application or service. Customer will fully cooperate with Sokanu in the defense of any claim defended by Customer pursuant to its indemnification obligations under this Agreement and will not settle any such claim without the prior written consent of Sokanu.

Limitation of Liabilities

The Parties acknowledge that the following provisions have been negotiated by them and reflect a fair allocation of risk and form an essential basis of the bargain and will survive and continue in full force and effect despite any failure of consideration or of an exclusive remedy:

AMOUNT. IN NO EVENT WILL THE TOTAL AGGREGATE LIABILITY OF EITHER PARTY TO THE OTHER PARTY IN CONNECTION WITH OR UNDER THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, EXCEED TWO-HUNDRED AND FIFTY THOUSAND (US $250,000)THE AMOUNT OF FEES PAID BY CUSTOMER FOR THE SOKANU SERVICES IN THE PRIOR 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 SOKANU’S THIRD PARTY SUPPLIERS HAVE ANY LIABILITY ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT.
TYPE. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL A PARTY BE LIABLE TO THE OTHER PARTY OR ANY PERMITTED USER FOR ANY: (I) SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES; (II) LOST SAVINGS, PROFIT, DATA, USE, OR GOODWILL; (III) BUSINESS INTERRUPTION; (IV) COSTS FOR THE PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES; (V) PERSONAL INJURY OR DEATH; OR (VI) PERSONAL OR PROPERTY DAMAGE ARISING OUT OF OR IN ANY WAY CONNECTED TO THIS AGREEMENT, REGARDLESS OF CAUSE OF ACTION OR THE THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR GROSS NEGLIGENCE), OR OTHERWISE, AND EVEN IF NOTIFIED IN ADVANCE OF THE POSSIBILITIES OF SUCH DAMAGES.

Term and Termination

Term. This Agreement will commence on the Effective Date (the “Term”). The Term will automatically renew for additional 1 year terms unless Customer provides Sokanu with written notice of its intention not to renew not less than 30 days prior to the end of the then current Term.
Termination for Cause. Either Party may, in addition to other relief, suspend or terminate this Agreement if the other Party commits a material breach of any provision of this Agreement and fails within 30 calendar days after receipt of notice of such breach to correct such material breach.
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; Reservation of Rights), Section 4 (Privacy), Section 6 (Fees and Payment), Section 7 (Confidential Information), Section 8 (Warranty; Disclaimer; Indemnity), Section 9 (Limitation of Liabilities), Section 10(b) (Survival), and Section 10(a) (General Provisions).
Export Restrictions. Customer will comply with all export laws and regulations that may apply to its access to or use of the Sokanu SaaS Services.
Construction. Except as otherwise provided in this Agreement, the Parties’ rights and remedies under this Agreement are cumulative. The terms “include” and “including” mean, respectively, “include without limitation” and “including without limitation.” The headings of sections of this Agreement are for reference purposes only and have no substantive effect. The terms “consent” or “discretion”, when used in respect of Sokanu in this Agreement means the right of Sokanu to withhold such consent or exercise such discretion, as applicable, arbitrarily and without any implied obligation to act reasonably or explain its decision to Customer.
Force Majeure. Neither Party will be liable for delays caused by any event or circumstances beyond Sokanu’s reasonable control, including acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labour problems (other than those involving Sokanu’s employees), Internet service failures or delays, or the unavailability or Modification by third parties of telecommunications or hosting infrastructure or third party websites.
Severability. Any provision of this Agreement found by a tribunal or court of competent jurisdiction to be illegal or unenforceable will be severed from this Agreement and all other provisions of this Agreement will remain in full force and effect.
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.
1. Independent Contractors. Sokanu’s relationship to Customer is that of an independent contractor, and neither Party is an agent, employee or partner of the other. Neither Party will have, and will not represent to any third party that it has, any authority to act on behalf of the other Party.
Entire Agreement. This Agreement constitutes the entire agreement between the Parties with respect to the subject matter of this Agreement and supersedes all prior or contemporaneous agreements, representations or other communications, whether written or oral.
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.
English Language. It is the express wish of the Parties that this Agreement and all related documents be drawn up in English.