Terms of Subscription

Last Updated: December 8, 2023
Link to Previous Terms

This Tread Terms of Subscription (this “Agreement”) is incorporated by reference to any Order Form (as defined below) entered into by TREAD TECHNOLOGIES INC., with its primary offices located at 30 Duncan Street, Suite 605, Toronto Ontario M5V 1L9 Canada ("Tread") and (“Customer”). Each Order Form, and the provision of any Solution or Services thereunder, shall be subject to this Agreement as of the date the Order Form is entered into between Tread and Customer (the "Effective Date"). Tread and Customer shall be referred to each as a "Party" and together as the "Parties".

Tread has a software-as-a-service materials intelligence platform (“Solution”). Customer desires to access and use the Solution and services related to the Solution or otherwise provided for under this Agreement or an applicable Order Form (collectively, the “Subscription Services”). The terms and conditions in this Agreement relate to, and govern, Customer’s use and access to the Services, and contain other important provisions. If an individual is entering into this Agreement on behalf of an organization, the individual represents that they have the authority to bind that organization to the terms and conditions in this Agreement, in which case “Customer” will refer to such organization.

PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT AND THE ORDER FORM(S) ENTERED INTO BETWEEN THE PARTIES CONSTITUTE A LEGALLY BINDING AGREEMENT BETWEEN CUSTOMER AND TREAD. THIS AGREEMENT GOVERN CUSTOMER’S ACCESS TO AND USE OF THE SERVICES. BY ENTERING INTO AN ORDER FORM WITH TREAD THAT REFERENCES THIS AGREEMENT, BY USING THE SOLUTION OR OTHERWISE USING THE SERVICES, CUSTOMER ACKNOWLEDGES AND AGREES TO BE BOUND BY THIS AGREEMENT (INCLUDING THE LINKED DOCUMENTS REFERRED TO IN THIS AGREEMENT), AS REVISED FROM TIME TO TIME, EXCEPT TO THE EXTENT THAT THE PARTIES ENTER INTO A WRITTEN AGREEMENT GOVERNING THE USE OF AND ACCESS TO THE SERVICES THAT EXPRESSLY STATES THAT CUSTOMER SHALL NOT BE BOUND BY THIS AGREEMENT, IN WHICH CASE CUSTOMER WILL BE BOUND BY THE TERMS AND CONDITIONS SET OUT IN THE WRITTEN AGREEMENT ENTERED INTO BY AND BETWEEN THE PARTIES.

IF CUSTOMER DOES NOT ACCEPT THIS AGREEMENT, CUSTOMER MUST NOT ACCESS OR USE THE SOLUTION OR THE SERVICES. IF CUSTOMER IS DISSATISFIED WITH THIS AGREEMENT OR ANY OTHER TERMS, CONDITIONS, RULES, POLICIES, GUIDELINES OR PRACTICES APPLICABLE TO THE SERVICES, CUSTOMER’S SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE ACCESS TO AND USE OF THE SOLUTION, AND ALL OTHER ASPECTS OF THE SERVICES.

IF CUSTOMER IS USING THE SOLUTION OR THE SERVICES ON BEHALF OF AN ORGANIZATION, CUSTOMER REPRESENTS THAT CUSTOMER HAS THE AUTHORITY TO BIND THAT ORGANIZATION TO THIS AGREEMENT, IN WHICH CASE “CUSTOMER” WILL REFER TO SUCH ORGANIZATION. IF CUSTOMER DOES NOT HAVE SUCH AUTHORITY, OR IF CUSTOMER DOES NOT AGREE WITH THIS AGREEMENT, CUSTOMER MUST NOT ACCESS OR USE THE SOLUTION OR THE SERVICES.

This Agreement is effective on the earlier of the date (a) you enter into an Order Form for the Solution or the Services that makes reference to this Agreement, or (b) access the Solution, or otherwise use the Services.

Customer acknowledges the Tread Privacy Policy (the “Privacy Policy”) located at www.tread.io/privacy-policy, as revised from time to time, and consents and agrees to the collection, use and disclosure of personal information as described in the Privacy Policy.

NOW THEREFORE, the Parties acknowledge and agree to the following:

Definitions.
1. "Aggregated Statistics" means data and information related to Customer's use of the Services that is used by Tread 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 shared with third parties.
2. "Company User" means users (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, and may include Customer's employees, consultants, contractors, and agents. For greater certainty, Company Users do not include Third-Party Users.
3. "Customer Data" means information, records, files, data, and other content, in any form or medium, that is submitted, posted, or otherwise transmitted by or on behalf of Customer or a Company User through the Services or to Tread for use with the Services.
4. “Enhancements” means any modifications, enhancements, updates, changes, corrections, versions, releases, additions or improvements.
5. "Law" means any statute, law, ordinance, regulation, rule, code, order, constitution, treaty, common law, judgment, decree, or other requirement of any federal, provincial, territorial, municipal, or foreign government or political subdivision thereof, or any arbitrator, court, or tribunal of competent jurisdiction.
6. "Intellectual Property Rights" means any and all registered and unregistered rights granted, applied for or otherwise now or hereafter in existence under or related to any patent, copyright, trademark, trade secret, data, database protection or other intellectual property rights laws, and all similar or equivalent rights or forms of protection, in any part of the world.
7. "Order Form" means any order form or initiating ordering document entered into between the Parties.
8. "Professional Services" means professional services provided by Tread under an applicable Order Form, including implementation, integration, configuration, training, custom development, support and maintenance services.
9. "Services" means the Subscription Services and Professional Services provided by Tread under this Agreement and any applicable Order Form.
10. "Third-Party User" means any subcontractor (including drivers) or customers of the Customer that Customer has requested Tread provide Subscription Services access to.
11. "Tread IP" means (i) the Services, the Solution, the Deliverables; (ii) any Enhancements to paragraph (i); and (iii) all Intellectual Property Rights in relation to (i) and (ii). For the avoidance of doubt, Tread IP includes Aggregated Statistics and any information, data, or other content derived from Tread monitoring of Customer's access to or use of the Services, but does not include Customer Data or Customer Confidential Information.
12. "User" means a Company User and a Third-Party User.
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, Tread 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.
2. Subscription Services License. Tread hereby grants Customer a non-exclusive, non-transferable (except in compliance with Section 11(j)) right to access and use the Subscription Services during the Term, solely for use by Company Users and Third-Party Users (in accordance with subsection 2(c)), as the case may be, in accordance with the terms and conditions herein. Such use is limited to Customer's internal use. Where applicable, Tread shall provide to Customer the necessary passwords and account information to allow Customer to access the Services.
3. License to Third-Party Users. Tread, on behalf of Customer, shall make the Subscription Services available for access and use by Third-Party Users. Tread shall require each Third-Party User to agree to the Solution Terms of Use prior to providing the Subscription Services to any such Third-Party User. Tread acknowledges and agrees that Customer shall have no responsibility or liability for the actions or inactions of any Third-Party User that violates the terms and conditions set out in this Agreement or the Solution Terms of Use.
4. Use Restrictions. Customer shall not use the Tread IP for any purposes beyond the scope of the access granted in this Agreement. Customer shall not at any time, directly or indirectly, and shall not permit any Company Users to: (i) copy, modify, or create derivative works of the Tread IP, in whole or in part; (ii) rent, lease, lend, sell, license, sublicense, assign, distribute, publish, transfer, or otherwise make available the Tread IP; (iii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to any software component of the Tread IP, in whole or in part, or access or use the Tread IP to develop or create a competitive service or product; (iv) remove any proprietary notices from the Tread IP; (v) use the Tread IP for any purpose that infringes, misappropriates, or otherwise violates any Intellectual Property Rights or other right of any person, or that violates applicable Law; (vi) frame or mirror any part of the Solution or the Services, or otherwise incorporate any portion of the Solution or the Services into any product or service; (vii) collect, harvest, reverse look-up, trace, or otherwise seek to obtain any information on any other user of or visitor to the Solution or Services; (viii) take any action that imposes an unreasonable or disproportionately large load on the infrastructure of Solution or Services or any systems or networks connected to them; or (ix) use the Solution or Services to send spam, or to store or transmit any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data.
5. Modifications. Tread may modify the Subscription Services or the Solution from time to time without notice to Customer. Tread will use commercially reasonable efforts to notify Customer in advance if a change is material, other than those changes which enhance or extend any features or functionality of the Services or Solution.
6. Reservation of Rights. Tread and its licensors have and will retain all right, title and interest in and to the Solution and the Services, and the software and systems used to provide them (including, without limitation, all patent, copyright, trademark, trade secret and other intellectual property rights), and all copies, and Enhancements of any of them. No rights are granted to you under this Agreement.
7. Suspension. Notwithstanding anything to the contrary in this Agreement, Tread may temporarily suspend Customer's and any User's access to any portion or all of the Solution if: (i) Tread reasonably determines that (A) there is a threat or attack on any of the Tread IP, (B) Customer's or any User's use of the Tread IP disrupts or poses a security risk to the Tread IP or to any other customer or vendor of Tread, (C) Customer, or any User, is using the Tread IP for fraudulent or illegal activities, (D) subject to applicable Law, Customer has ceased to continue its business in the ordinary course, made an assignment for the benefit of creditors or similar disposition of its assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding, or (E) Tread provision of the Services to Customer or any Company User is prohibited by applicable Law; (ii) any vendor of Tread has suspended or terminated Tread access to or use of any third-party services or products required to enable Customer to access the Services; or (iii) in accordance with Section 4(a) (any such suspension described in subclause (i), (ii), or (iii), a “Service Suspension”). Tread shall use commercially reasonable efforts to provide written notice of any Service Suspension to Customer and to provide updates regarding resumption of access to the Services following any Service Suspension. Tread shall use commercially reasonable efforts to resume providing access to the Services as soon as reasonably possible after the event giving rise to the Service Suspension is cured. Tread will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Company User may incur as a result of a Service Suspension.
8. Aggregated Statistics. Notwithstanding anything to the contrary in this Agreement, Tread may monitor Customer's use of the Services and collect and compile Aggregated Statistics. As between Tread and Customer, all right, title, and interest in Aggregated Statistics, and all Intellectual Property Rights therein, belong to and are retained solely by Tread. Customer acknowledges that Tread may compile Aggregated Statistics based on Customer Data inputted into or used to provide the Services. Customer agrees that Tread may (i) make Aggregated Statistics publicly available in compliance with applicable Law, and (ii) use Aggregated Statistics to the extent and in the manner permitted under applicable Law, including to develop, optimize or promote Tread’s products or services, provided that such Aggregated Statistics do not identify Customer, Customer Data or Customer's Confidential Information.
9. Professional Services. Tread will use commercially reasonable efforts to perform the Professional Services set out in the applicable Order Form.
Customer Responsibilities.
1. Company Users. Customer is responsible and liable for all uses of the Services resulting from access provided by Tread, directly or indirectly, whether such access or use is permitted by or in violation of this Agreement. Without limiting the generality of the foregoing, Customer is responsible for all acts and omissions of Company Users, and any act or omission by a Company User that would constitute a breach of this Agreement if taken by Customer will be deemed a breach of this Agreement by Customer. Customer shall use all reasonable efforts to make all Company Users aware of this Agreement's provisions as applicable to such Company User's use of the Services and shall cause Company Users to comply with such provisions.
2. Customer Data. Customer is exclusively responsible for all matters related to Customer Data, and Customer represents and warrants that: (i) the Customer Data does not infringe, violate or misappropriate and third-party intellectual property or privacy rights, or any other rights granted under applicable Law; (ii) Customer is the sole owner of the Customer Data or has the necessary and required consents, licenses, permits, permissions, releases, clearances, and rights to use, display, process, share, post, upload and transfer the Customer Data under this Agreement; (iii) the Customer Data does not contain any illegal, defamatory, denigrating, demeaning or offensive material or content, and does not otherwise violate applicable Laws; or (iv) the Customer Data does not contain any virus, Trojan horse, worm, or other software, script or code, the effect of which is to permit unauthorized access to, or to alter, disable, encrypt, erase, or otherwise harm, any computer, systems, software or data.
Fees and Payment.
1. Fees. Customer shall pay Tread the fees ("Fees") as set forth in the Order Form without off-set or deduction. Unless otherwise noted on an Order Form: (i) all Fees are identified the currency of the territory in which the Services are being provided; (ii) Fees are non-cancelable and non-refundable; (iii) quantities purchased cannot be decreased during the relevant subscription term. If the Customer’s use of the Subscription Services exceeds the service capacity set forth in an applicable Order Form or otherwise requires the payment of additional fees pursuant to the terms of this Agreement, the Customer will be billed for such usage and the Customer will pay the additional fees that are proportionate to the Fees payable by Customer under this Agreement. Following the Initial Term, no more than once during any Renewal Term, Tread shall have the right to increase any Fees upon providing notice to Customer of such increase no less than 30 days prior to the expiration of the then-current Renewal Term. Any such increase in Fees shall be set out in a separate Order Form to be entered into between the Parties. If Tread exercises the foregoing right and the Parties mutually agree to enter into a new Order Form with the revised Fees, any such Fee increase will become effective at the commencement of the next Renewal Term. Should Customer not agree to an increase in any such Fees, then Customer reserves the right to terminate this Agreement in accordance and shall only be responsible for any Fees owed to Tread up to the date of termination.
2. Payment. Customer shall make all payments hereunder on or before the due date set forth in the Order Form If Customer fails to make any payment when due, without limiting Tread’s other rights and remedies: (i) Tread may charge interest on the past due amount at the rate of 1.5 percent (1.5%) per month or, if lower, the maximum amount permitted under applicable Law; (ii) Customer shall reimburse Tread for all reasonable costs incurred by Tread 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, Tread may suspend Customer's and any Users' access to any portion or all of the Services until such amounts are paid in full.
3. Taxes. All Fees and other amounts payable by Customer under this Agreement are exclusive of taxes and similar assessments. Customer is responsible for all harmonized sales tax (HST), provincial sales tax (PST), goods and services tax (GST), value added tax, use and excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, provincial, territorial, or local governmental entity on any amounts payable by Customer hereunder, other than any taxes imposed on Tread income.
4. Auditing Rights and Required Records. Customer agrees to maintain complete and accurate records in accordance with generally accepted accounting principles during the Term and for a period of two (2) years after the termination or expiration of this Agreement with respect to matters necessary for accurately determining amounts due hereunder. Tread may, at its own expense, on reasonable prior notice, periodically inspect and audit Customer's records with respect to matters covered by this Agreement, provided that if such inspection and audit reveals that Customer has underpaid Tread with respect to any amounts due and payable during the Term, Customer shall promptly pay the amounts necessary to rectify such underpayment, together with interest in accordance with Section 4(a). Customer shall pay for the costs of the audit if the audit determines that Customer's underpayment equals or exceeds ten percent (10%) for any quarter. Such inspection and auditing rights will extend throughout the Term of this Agreement and for a period of two (2) years after the termination or expiration of this Agreement.
Confidentiality, Privacy & Security
1. Confidentiality.
  1. 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.
  2. Notwithstanding the foregoing, each Party may disclose Confidential Information to the limited extent required (A) 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 (B) to establish a Party's rights under this Agreement, including to make required court filings.
  3. 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. Privacy Policy. Tread’s current Privacy Policy is available at https://tread.io/privacy-policy and, by accepting this Agreement, Customer accepts and agrees to such Privacy Policy. Tread may revise its Privacy Policy from time to time without notice by posting a new version at https://tread.io/privacy-policy. Customer accepts the practices described in this Privacy Policy. If Customer fails to accept the practices described in this Privacy Policy, as it may be revised from time to time by Tread in accordance with this section, Tread may terminate this Agreement or the Order Form for any Services on notice to the Customer, in which case Tread will refund to the Customer any pre-paid fees in respect of the Services that are being terminated. If Customer fails to comply with the practices described in the Privacy Policy, as it may be revised from time to time by Vendor in accordance with this section, Tread may terminate this Agreement in accordance with subsection 10(b) of this Agreement.
3. Security. Tread will maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of any Customer Confidential Information. Those safeguards will include measures designed to prevent unauthorized access to or disclosure of the Customer Confidential Information (other than by Customer or its Users).
4. Security Events. In the event either Party becomes aware of any loss, theft or unauthorized access, copying, modification, use or disclosure of the Confidential Information of the other Party, or in the case of Customer, the Services or Solution (a “Security Event”), it will, in accordance with applicable Law: (i) notify the other Party in writing of the circumstances of such Security Event, as well as the nature and details of such loss, theft or unauthorized access, copying, modification or disclosure, including the nature and content of the information so affected as soon as feasible following discovery of the Security Event (taking into account any legal or regulatory restraints on notification and the need to avoid prejudicing current investigations); (ii) promptly respond to such Security Event and investigate and remediate the Security Event in accordance with commercially reasonable industry standards and keep all records, reports and evidence of the Security Event as required by applicable Law; (iii) provide cooperation and assistance to the other Party, and promptly take such actions as may be necessary or reasonably requested by the other Party to minimize the extent of any impacts of such Security Event; (iv) take all such actions to notify any government authorities or affected persons as may be required by applicable Law; (v) maintain all relevant and applicable records of, and all relevant and applicable records or other information pertaining to, such Security Event, including the results of any investigation or investigation by law enforcement officials as required by applicable Law; and (vi) cooperate in all reasonable respects with the other Party, including without limitation, working with the other Party on the wording of any required notifications and communications, and take such measures as necessary to minimize the likelihood of future disclosures, losses or breaches. Each Party agrees to respond to reasonable inquiries received from the other Party in connection with a Security Event, and where requested shall make available relevant employees to discuss such inquiries with the other Party’s representatives. Each Party shall treat all such information received from the Party experiencing the Security Event, as the Confidential Information of the Party experiencing the Security Event.
Intellectual Property Ownership; Feedback.
1. Tread IP. Customer acknowledges that, as between Customer and Tread, Tread owns all right, title, and interest, including all Intellectual Property Rights, in and to the Tread IP.
2. Deliverables. Unless otherwise agreed upon in writing by the Parties, all right title and interest, including all Intellectual Property rights, in and to any deliverables created, produced or formed by Tread in the performance of the Professional Services (collectively, the "Deliverables") shall be and shall remain in Tread and shall vest with Tread upon their creation. To the extent necessary to carry out the terms of this Section 6(b), Customer assigns and transfers and agrees to assign and transfer and to cause any employee, affiliate or contractor to assign and transfer to Tread all such right, title and interest worldwide, including all Intellectual Property Rights, in such Deliverables, and shall cause each of its employees, affiliates and contractors to waive their respective moral rights in and to the works comprised in such Deliverables in favour of Tread. During the Term, Tread grants to Customer a limited, non-exclusive, revocable, non-sublicensable, non-transferable license to use the Deliverables solely in connection with Customer's use and access in and to the Services.
3. Customer Data. Tread acknowledges that, as between Tread and Customer, Customer (or its subcontractors) owns all right, title, and interest, including all Intellectual Property Rights, in and to the Customer Data. Customer hereby grants to Tread 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 Tread 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.
4. Feedback. At your option you may provide feedback, suggestions, recommendations, and corrections to Tread about the Solution and other Tread products and services or otherwise in connection the Agreement, including by responding to surveys and questionnaires (“Feedback”). You grant to Tread 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 Tread’s products and services.
Warranties.
1. Warranties for Subscription Services. Tread warrants that during an applicable subscription term: (a) the Subscription Services will perform materially in accordance with the any documentation or specifications provided by Tread, and (b) Tread will not materially decrease the overall functionality of the Subscription Services. For any breach of this warranty, Customer’s exclusive remedy and Tread’s entire liability will be for Tread to use commercially reasonable efforts to cause the Subscription Services to comply with the warranty within a reasonable period of time after receipt of notice in writing from Customer.
2. Warranties for Professional Services. Tread 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 Tread’s entire liability will be the re-performance of the applicable portion of the Professional Services. If Tread is unable to re-perform the Professional Services as warranted, Customer will be entitled to recover the Professional Services fees paid to Tread for the deficient Professional Services. Customer must make any claim under this warranty to Tread in writing within 30 days of the delivery of the applicable work in order to receive warranty remedies.
3. Disclaimer. EXCEPT AS EXPRESSLY SET OUT IN SECTIONS 7(a) AND (b), THE TREAD IP IS PROVIDED "AS IS" AND TREAD HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE. TREAD SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES AND 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 OTHER WARRANTIES OR CONDITIONS ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE IN RELATION TO THE TREAD IP OR THE SERVICES. TREAD MAKES NO WARRANTY OF ANY KIND THAT THE TREAD IP, THE SERVICES, OR ANY PRODUCTS 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. TREAD DISCLAIMS ALL LIABILITY AND INDEMNIFICATION OBLIGATIONS FOR: (i) ANY THIRD-PARTY PRODUCTS; AND (ii) ANY HARM OR DAMAGES CAUSED BY ANY DATA CENTER SERVICE PROVIDERS.
Indemnification.
1. Tread Indemnification.
  1. Tread 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, or any use of the Services in accordance with this Agreement, infringes, violates or misappropriates such third party's Canadian Intellectual Property Rights, provided that Customer promptly notifies Tread in writing of the claim, cooperates with Tread, and allows Tread 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 Tread, at Tread’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 Tread determines that neither alternative is reasonably available, Tread 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 8(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 Tread or authorized by Tread in writing; (B) modifications to the Services not made by Tread; or (C) Customer Data.
  4. THIS SECTION 8(A) SETS FORTH CUSTOMER'S SOLE REMEDIES AND Tread'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 Tread’s option, defend Tread 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 Rights or privacy rights and any Third-Party Claims based on Customer's or any Company User's (i) negligence or wilful misconduct; (ii) use of the Services in a manner not authorized by this Agreement; (iii) use of the Services in combination with data, software, hardware, equipment or technology not provided by Tread or authorized by Tread in writing; or (iv) modifications to the Services not made by Tread, provided that Customer may not settle any Third-Party Claim against Tread unless Tread consents to such settlement, and further provided that Tread 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 TREAD 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 TREAD’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 TREAD UNDER THIS AGREEMENT IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
Term and Termination.
1. Term. The initial term of this Agreement shall be set out in the applicable Order Form (the "Initial Term"), and shall automatically renew for additional terms as set out in the applicable Order Form, unless earlier terminated pursuant to this Agreement's express provisions or either Party gives the other Party written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term (each a "Renewal Term" and together with the Initial Term, the "Term").
2. Termination. In addition to any other express termination right set forth in this Agreement:
  1. Tread may terminate this Agreement, effective on written notice to Customer, if Customer: (A) fails to pay any amount when due hereunder, and such failure continues more than ten (10) days after Tread’s delivery of written notice thereof; (B) breaches any of its obligations under Section 2(d), Section 3(a), Section 3(b) or Section 5(a); or (C) at its sole discretion ninety (90) days after Tread's delivery of 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. Tread may terminate this Agreement, effective immediately upon written notice to Customer, if Customer: (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, Customer and all Users shall immediately discontinue use of the Tread IP and, without limiting Customer's obligations under Section 6, Customer shall delete, destroy, or return all copies of the Tread IP and certify in writing to the Tread that the Tread IP has been deleted or destroyed. 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.
4. Customer Data. Upon request by Customer made within six (6) months after the effective date of termination or expiration of the applicable Term, Tread will make Customer Data related to the Services for which has expired or been terminated, available to Customer. After such 30-day period, Tread 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. Section 1, Section 4, Section 5, Section 6, Section 7, Section 8, Section 9, Section 10 and Section 11 shall survive any termination or expiration of this Agreement. No other provisions of this Agreement survive the expiration or earlier termination of this Agreement.
Miscellaneous.
1. Entire Agreement. The Order Form(s) entered into by the Parties and this Agreement, together with any other documents incorporated herein by reference and all related Exhibits, constitutes the sole and entire agreement of the Parties with respect to the subject matter of this Agreement and supersedes all prior and contemporaneous understandings, agreements, and representations and warranties, both written and oral, with respect to such subject matter, except where the Parties enter into a written agreement expressly stating that said written agreement supersedes this Agreement. .
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 in the applicable Order Form(or to such other address that may be designated by a 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 Tread 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 Tread’s reasonable control, including but not limited to acts of God, epidemics, pandemics, flood, fire, earthquake, explosion, war, terrorism, invasion, riot or other civil unrest, strikes, labour stoppages or slowdowns, internet, telecommunication or other infrastructural failures or delays or other industrial disturbances, or passage of law or any action taken by a governmental or public authority, including imposing an embargo.
5. Amendments and Modifications. The “Last Updated” legend above indicates when this Agreement was last amended. Tread may unilaterally amend all or any part of this Agreement at any time by updating this Agreement at www.tread.io/terms-of-subscription. Tread will provide Customer with notice of the proposed amendments by posting an amended version of this Agreement with a new version date and by sending Customer an email at the email provided at the time of entering into the applicable Order Form. Tread will include a link to the previous version of this Agreement beneath the new version date. The amendments will take effect thirty (30) days after the date on which the amended version is posted. Prior to that date, the previous version of this Agreement will continue to apply. If Customer disagree with any amendments, Customer may refuse the amendments and cease using the Tread IP and the Services within the 30-day notice period. There will be no cost or penalty for doing so. If Customer or any Authorized User continues to access or use the Tread IP or the Services after the 30-day period, Customer thereby agree to the amended Agreement. Customer agrees to review this Agreement regularly to determine its rights and responsibilities.
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 Ontario 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 Province of Ontario, 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 has been brought in an inconvenient forum.
10. Assignment. Neither Party shall 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 the other Party; provided, however, that either Party may assign this Agreement to its successor in connection with a reorganization, merger, consolidation, acquisition, restructuring, sale of all or substantially all of the business, provided that it promptly notifies the other Party in writing of the assignment and the assigner agrees in writing to be bound by the terms of this Agreement and assume the obligations of the assignor under this Agreement in accordance with this Subsection 11(j). Any purported assignment or delegation by a Party in violation of this Section will be null and void. This Agreement enures to the benefit of and is binding upon the Parties and their respective successors and permitted assigns.
11. Equitable Relief. Each Party acknowledges and agrees that a breach or threatened breach by such Party of any of its obligations under Section 5(a) or, in the case of Customer, Section 2(d) and Sections 3(a) and 3(b), 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. Publicity. Tread 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.
13. 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.
14. Language. It is the express wish of the Parties that this Agreement be drawn up in English. C’est la volonté expresse des Parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.
15. 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.