Subscription Agreement

• Subscription Services. iLobby provides a visitor management software platform (the “Services”) on a subscription basis. The term of each subscription of Services (as may be renewed from time to time, the “Subscription Period”) shall be set out on a form indicating Customer’s intent to purchase such Services (the “Purchase Form”) and shall commence upon receipt by iLobby of a completed Purchase Form.
• Access and Use (License). Customer may access and use the Services on a non-exclusive, non-transferable, non-assignable, limited, non-sub-licensable basis during the applicable Subscription Period, and subject at all times to the terms and conditions of this Agreement.
• During the Subscription Period, iLobby shall ensure the Services are available to Customer and those of its employees, contractors and visitors (collectively, the “End Users”). iLobby strives to deliver 99.9% uptime to the Customer and its End Users and to promptly resolve all technical issues when they arise (collectively, the “Support”). Details of the iLobby Support program are available at https://www.ilobby.com/support-program , as may be updated from time to time at iLobby’s sole discretion. All system maintenance is performed at low peak times with minimal impact on availability.  Support requests must be submitted to support@ilobby.com and will be reviewed and responded to promptly.  Customers are responsible for establishing adequate internal mechanisms to support business functions in cases where the iLobby Services are not accessible. 
• Professional Services. Upon payment of additional fees, iLobby may provide professional services related to the implementation, integration, and configuration of the Services (the “Professional Services”). Details of any Professional Services shall be set out on a Purchase Form. Professional Services shall be performed in a professional manner using qualified and experienced personnel familiar with iLobby Services.
• Hardware. iLobby may provide equipment and other hardware (“Hardware”) to Customer. Details of any Hardware, including any applicable fees, shall be set out on a Purchase Form. Delivery and risk of loss shall pass to Customer FOB shipping point.
• Unauthorized Access or Use. Customer is responsible for protecting the security and integrity of the access to the Services and any Hardware. Customer is responsible for all actions taken by End Users. Customer shall not gain or attempt to gain, or permit any third party (including any End User) to gain, unauthorized access to the Services. Each of iLobby and Customer shall notify the other party promptly of any suspected or known unauthorized access or use of the Services, will use commercially reasonable efforts to prevent such unauthorized access or use and will use commercially reasonable efforts to stop said unauthorized access or use. Customer may not, and shall not permit its End Users to: (a) access or use the Services to provide services for or on behalf of any third party, or to commercially exploit the Services in any way, including without limitation by operating as a service bureau, by time-sharing, or by framing or mirroring any part of the Services; (b) access or use the Services to build a competitive product or service or otherwise modify the Services or make derivative works based on the Services, including without limitation to build a product using any similar ideas, features, functions or graphics of the Services, or to copy or modify any or all of the Services; (c) use any security testing tools in order to probe, scan or attempt to penetrate or ascertain the security of the Services, or to otherwise engage in denial of service attacks; (d) impose an unreasonable or disproportionately large load on the Services or infrastructure used to operate and to make the Services available; (e) unless otherwise agreed, access or use the Services for purposes of monitoring the availability, performance or functionality of the Services, or for any other benchmarking, comparison or competitive purpose; (f) modify, reverse engineer, adapt, translate, decompile or otherwise derive the source code for the Services; (g) use any software in connection with the Services that may require the Services or portion of the Services, or other intellectual property of iLobby or its third party suppliers or licensors, to be disclosed or distributed in source code form, made available free of charge to recipients, or modifiable without restriction by recipients; (h) remove, modify or obscure any proprietary notices, labels or marks in or on any or all of the Services; (i) sell, assign, sublicense, rent, lease, loan, provide, copy, reproduce, distribute or otherwise transfer all or any portion of the Services; or (j) access or use the Services in a manner inconsistent with this Agreement, or in a manner that is contrary to applicable law, rule or regulation, including, without limitation, privacy laws.
• Customer Data. All information and data uploaded or transmitted by Customer and its End Users into the Services (collectively, “Customer Data”) is owned by Customer. Customer hereby grants to iLobby a non-exclusive, royalty-free, fully paid-up, worldwide right to use, process and transmit, the Customer Data so that iLobby may provide the Services to Customer. Customer will not, and shall take reasonable measures to ensure its End Users and any other third party do not, upload or transmit via any Customer Data to the Services that (a) contains any viruses, trojan horses, worms, time bombs, cancelbots, or other malicious computer programming; (b) violates Section 1.6; or (c) includes any information that pertains to a specific person (“Personal Data”) without the necessary consents to transfer such information to iLobby. Customer agrees that (i) iLobby does not review, edit, substantiate, determine or otherwise have any responsibility for the accuracy, quality, integrity, legality, reliability, or appropriateness of any Customer Data; and (ii) iLobby may take remedial action(s) in the event that any Customer Data violates the terms and conditions of this Agreement, in addition to any other remedies iLobby may have. Customer has sole responsibility for, and iLobby disclaims all liability for, the Customer Data (including, without limitation, any Personal Data) transmitted by Customer or its End Users to the Services. Customer further agrees and confirms that iLobby may use aggregated and/or anonymous data derived from the information stored within the Services for purposes including, without limitation, the development and enhancement of services, provided that such information does not include any Personal Data and cannot be traced back to a specific customer or end user. Customer is responsible for downloading its Customer Data; all Customer Data will be deleted upon expiry of a Subscription Period and termination of this Agreement.
• Personal Data. If Customer requires its End Users to enter Personal Data into the Services, Customer agrees and confirms that it has obtained the necessary consents and permissions for the transmission, processing, access and storage of such Personal Data to iLobby.
• Intellectual Property Ownership. As between the parties, all intellectual property and other proprietary rights, including all rights provided under trade secret law, patent law, copyright law, trade mark, common law, or service mark, common law law, design patent or industrial design law, semi-conductor chip or mask work law, and any other statutory provision or common law principle which may provide a right in either ideas, formulae, algorithms, concepts, inventions or know-how, whether registered or not and including all applications therefor (collectively, “Intellectual Property Rights”) in and to the Services and, if any, Professional Services belong exclusively to iLobby.
• Updates and Modifications to the Services.   Customer acknowledges and agrees that from time-to-time iLobby may apply updates to, or otherwise revise, the Services and that such updates and/or revisions may result in modifications to the functionality, features, content and appearance of the Services.

• Fees. Customer hereby agrees to pay the subscription and other fees for the (collectively, the “Fees”) as set out on the Purchase Form. All Purchase Forms are subject to the terms and conditions of this Agreement and any inconsistent terms shall be null and void.
• Payment Terms. All invoices are due in full thirty (30) days from the date of invoice without deduction or set off. All Fees are denominated in United States Dollars, unless otherwise indicated.   All Fees are subject to applicable sales and use taxes, which shall be the responsibility of Customer. Any amounts not received by iLobby by the due date shall be subject to interest at the rate of two percent (2%) per month, calculated and compounded monthly.

• Confidential Information. “Confidential Information” shall mean all information provided by one party to the other pursuant to this Agreement, whether before or after the execution of this Agreement, which includes, without limitation, information about such party’s business, patents, copyrights, trademarks, trade secrets, products, software, programs, developments, know-how, pricing information, marketing and sales information, business plans or dealings, financial information, customers and potential customers and any other information which may reasonably be regarded as confidential and proprietary of the disclosing party.
• Non-disclosure. During the term of this Agreement, the receiving Party shall not disclose the other party’s Confidential Information to any other person, other than to its officers, employees, agents or sub-contractors strictly on a need-to-know basis, each of which shall be aware of the confidential nature of the Confidential Information and bound by contractual obligations to maintain the confidentiality of such information. During the term of this Agreement, the receiving Party shall not use the other party’s Confidential Information other than in the course of fulfilling its obligations under this Agreement. Each party agrees to implement reasonable security measures to protect the other party’s Confidential Information.
• Data Security and Data Privacy. During the term of this Agreement, iLobby shall maintain commercially reasonable technical and organizational security procedures to preserve the security, integrity, privacy and confidentiality of the Services and any Customer Data stored therein. If Customer uses its own equipment or hardware for storage, transmission or processing of Customer Data, then Customer bears all responsibility for the security and integrity of its equipment and hardware and iLobby’s obligations and liability set out in this Agreement shall not extend to Customer’s equipment or hardware. Customer is responsible for the accuracy, quality and legality of all Personal Data in the Customer Data, including the obligation to obtain any necessary permissions and consents applicable to the collection, use, processing and storage of such data.   Customer confirms that the Services are designed to collect and process personal information of Customer’s visitors, including, without limitation, their names, contact information, and photos and that Customer is solely responsible for creating and implementing an appropriate and compliant privacy policy regarding the collection of personal information. Upon Customer’s request or where legally required, iLobby and Customer may enter into a data processing agreement. iLobby shall have a discretionary right to pause the enjoyment of Services by Customer in the event Customer contravenes either clause 1.6 (Unauthorized Access or Use), 1.7 (Customer Data), or this clause 3.3.

• Term of Agreement: This Agreement shall commence on the earlier of (a) the date of Customer’s signature of this Agreement, (b) first access to the Services by Customer or its End Users or (c) date of iLobby’s receipt of a Purchase Form from Customer and shall continue in force until terminated by either party in accordance with the termination provisions herein. Outstanding Purchase Forms shall not be affected by any termination of this Agreement unless specifically terminated along with the termination of the Agreement.
• Subscription Period. Unless otherwise set out on a Purchase Form, each Subscription Period shall be one year in length and shall automatically renew for successive 1-year periods unless cancelled by either party at least thirty (30) days prior to the end of the then current Subscription Period.
• Termination. Either party may terminate this Agreement and/or any outstanding Purchase Form if the other party (a) commits a material breach of this Agreement and fails to cure such breach upon 30 days prior written notice; or (b) becomes insolvent, files a bankruptcy petition, institutes proceedings for liquidation or winding up or enters into an agreement to assign its assets for the benefit of creditors. Termination of this Agreement or any Purchase Form will not affect Customer’s obligation to pay for Services provided prior to the termination, which amounts shall be payable immediately upon the effective date of termination. If Customer terminates a Purchase Form due to breach by iLobby, then Customer shall be entitled to a pro rata refund of any prepaid Fees from effective date of termination of such Purchase Form.
• Effect of Termination. Upon termination or expiration of this Agreement, Customer shall immediately cease to use the Services and shall return, at its own cost and expense, all Hardware owned by iLobby. From and after the termination date, Customer shall no longer have access to any Customer Data.

5. Warranty Disclaimer

WARRANTY DISCLAIMERS. THE SERVICES AND, WHERE APPLICABLE, PROFESSIONAL SERVICES ARE PROVIDED “AS IS” AND AS AVAILABLE AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THERE ARE NO REPRESENTATIONS OR WARRANTIES, CONDITIONS OR GUARANTEES, EXPRESS OR IMPLIED (WHETHER ARISING UNDER COMMON LAW, STATUTE, COURSE OF DEALING OR TRADE, OR OTHERWISE) RELATING TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTY OR CONDITION OF QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, CURRENCY, ACCESSIBILITY, RELIABILITY, SECURITY, AVAILABILITY, UNINTERRUPTED USE, OR THAT THE SERVICES ARE OR WILL BE ERROR-FREE OR VIRUS-FREE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY ILOBBY WILL CREATE ANY REPRESENTATION, WARRANTY OR CONDITION.

6. Indemnifications

• iLobby’s Indemnification Obligation. At its own cost, iLobby shall indemnify and defend Customer, its officers, directors, employees, representatives and any direct or indirect parent or subsidiary entities (collectively, the “Customer Indemnified Parties”) against any and all third party claims or demands that the Services (or any portion thereof) when expressly used pursuant to this Agreement violated a third party’s Intellectual Property Rights in Canada or the United States and all amounts required to be paid in a settlement approved by iLobby or awarded by a court in a final, non-appealable judgement; provided: (a) Customer has promptly notified iLobby of such claim and iLobby is not prejudiced by any delay by Customer; (b) iLobby shall have full control over the defense of the claim, provided that any settlement or resolution entered into by iLobby shall not require any admission of liability or any payment by Customer; (c) Customer has not made any admission against iLobby’s interests and has not agreed to any settlement of any claim or demand without iLobby’s consent; and (d) Customer shall cooperate with iLobby in the defense of the claim, at iLobby’s expense.
• Exceptions to iLobby’s Indemnification Obligation. Notwithstanding Section 6.1, iLobby shall be under no obligation to indemnify or defend any Customer Indemnified Party to the extent any infringement claim or demand by a third party arises as a result of: (a) access to or use of the Services in violation of this Agreement or inconsistent with instructions and guidance set out within the Services; (b) any modification to the Services (or any portion thereof) by a party other than iLobby or its authorized agents and without iLobby’s consent; (c) any combination of the Services (or any portion thereof) with any computer program, software, hardware or equipment where such claim of infringement would not exist without such combination; or (d) access to or use of the Services after iLobby notifies Customer to discontinue such access or use.
• Additional Infringement Remedies. At iLobby’s sole expense and discretion, in response to any pending or potential infringement claim, iLobby may: (a) procure for Customer the right to continue using the Services or applicable portion thereof; (b) replace or modify the Services or applicable portion thereof so that it is non-infringing; or (c) terminate this Agreement and any outstanding Purchase Forms either entirely or only as it relates to the infringing features of the Services and refund to Customer the pro rata unused portion of any prepaid fees allocable to such part(s) of the Services that are terminated.
• Sole Remedy. Sections 6.1 and 6.3 constitute Customer’s sole remedy from iLobby in respect of infringement claims and demands.
• Customer’s Indemnification Obligation. At its own cost, Customer shall indemnify and defend iLobby, its officers, directors, employees, representatives and any direct or indirect parent or subsidiary entities (collectively, the “iLobby Indemnified Parties”) against any and all third party claims or demands (including claims and demands from End Users) related to (i) any act or omission which results in Customer’s failure or alleged failure to comply with Section 1.6 (Unauthorized Access or Use), Section 1.7 (Customer Data), Section 1.8 (Personal Data), Section 3.3 (Data Security and Data Privacy). The foregoing indemnification obligations apply provided that (a) iLobby has promptly notified Customer of such claim and Customer is not prejudiced by any delay by iLobby; (b) Customer shall have full control over the defense of the claim, provided that any settlement or resolution entered into by Customer shall not require any admission of liability or any payment by iLobby; (c) iLobby has not made any admission against Customer’s interests or has not agreed to any settlement of any claim or demand without Customer’s consent; and (d) iLobby shall cooperate with Customer in the defense of the claim, at Customer’s expense.

7. Limitation of Liability

• NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, ILOBBY SHALL NOT BE LIABLE FOR ANY (i) INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE SERVICES; AND (ii) LOST PROFITS, ANTICIPATED OR LOST REVENUE, LOSS OF DATA, LOSS OF USE OF ANY INFORMATION SYSTEM, FAILURE TO REALIZE EXPECTED SAVINGS OR ANY OTHER COMMERCIAL OR ECONOMIC LOSS, OR ANY THIRD PARTY CLAIM, WHETHER ARISING IN NEGLIGENCE, TORT, FUNDAMENTAL BREACH, STATUTE, EQUITY, CONTRACT, COMMON LAW, OR ANY OTHER CAUSE OF ACTION OR LEGAL THEORY, HOWEVER CAUSED, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF THOSE DAMAGES.
• LIMITATIONS; CARVE-OUTS. NOTWITHSTANDING ANYTHING ELSE IN THIS AGREEMENT, ILOBBY’S TOTAL CUMULATIVE LIABILITY FOR DAMAGES, EXPENSES, COSTS AND LOSSES ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND THE SERVICES ARE (A) LIMITED TO DIRECT, ACTUAL, PROVABLE DAMAGES, AND (B) IN NO EVENT WILL EXCEED, IN THE AGGREGATE, ALL AMOUNTS PAID BY CUSTOMER TO ILOBBY UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO SUCH CLAIM FOR DAMAGES; PROVIDED, HOWEVER, THAT FOR ANY BREACH OF SECTION 3.1 (CONFIDENTIAL INFORMATION) AND SECTION 6.1 (ILOBBY’S INDEMNIFICATION OBLIGATIONS) OR FOR ANY DAMAGES CAUSED BY ILOBBY’S GROSS NEGLIGENCE OR WILFUL MISCONDUCT, ILOBBY’S TOTAL CUMULATIVE LIABILITY FOR ANY DAMAGES, EXPENSE, COSTS AND LOSSES RELATED THERETO SHALL NOT EXCEED, IN THE AGGREGATE, TWO TIMES (2X) ALL AMOUNTS PAID BY CUSTOMER TO ILOBBY UNDER THIS AGREEMENT IN THE TWELVE MONTHS IMMEDIATELY PRIOR TO THE EVENTS GIVING RISE TO SUCH CLAIM FOR DAMAGES.
• EXCLUSION OF THIRD PARTY SOFTWARE AND SERVICES. iLobby shall not be liable for any failures or damage caused by third party software or services.

8. Miscellaneous

• Assignment. Without the prior written consent of iLobby, Customer may not assign this Agreement or any of its rights or obligations hereunder, except to an affiliate and provided (a) such affiliate agrees to be bound by the terms of this Agreement and (b) Customer remains responsible for its affiliate’s compliance with this Agreement, including payment of all Fees.
• Entire Agreement, Amendment. This Agreement contains the entire understanding of the parties hereto on the subject matter hereof and supersedes any previous agreements or understandings, written or oral, in effect between the parties relating to the subject matter hereof. No amendment or modification of this Agreement shall be effective or binding unless agreed to in writing by both parties.
• Waiver of Breach. The waiver of any breach of this Agreement, or the failure of a party to exercise or enforce any right under this Agreement, shall in no event constitute a waiver of any other breach, whether similar or dissimilar in nature, or prevent the exercise or enforcement of any right under this Agreement.
• No Third Party Beneficiaries. Nothing in this Agreement is intended to confer on any party other than iLobby, Customer and their permitted assigns any benefits, rights or remedies.
• Equitable Remedies. The parties agree that in the event of any breach or threatened breach of Section 3.2, money damages would be an inadequate remedy and the affected party shall be entitled to seek injunctive relief, without the need to post a bond or other security.
• Notices. Any notice required or otherwise provided for in this Agreement shall be given to iLobby or Customer, as the case may be, at the physical and/or e-mail address set forth on a current Purchase Form or invoice. Any notice to iLobby shall also be delivered to legal@ilobby.com.
• Severability. If any provision of this Agreement is deemed contrary to applicable law or unenforceable by a court of competent jurisdiction, the remaining terms and conditions of this Agreement shall be unimpaired and the parties shall substitute a valid, legal and enforceable provision as close in legal and economic consequence as possible to the provision being struck or considered unenforceable. If the limitation of liability set forth in this Agreement is limited by law, then iLobby’s liability will be limited to the greatest extent permitted by law.
• Force Majeure. Except for payment and confidentiality obligations, neither party shall be liable for any delay or failure to perform its obligations in this Agreement attributable to circumstances beyond its reasonable control, such as acts of God, fire, natural disaster, terrorism, labor stoppage, internet service provider failures or delays, civil unrest, war or military hostilities, criminal acts of third parties.
• Publicity Rights. iLobby shall have the right to use the name, trademarks, logos, trade names or trade dress of Customer in publicity, advertising, customer list, or announcements.
• Governing Law; Arbitration. Regardless of the place of execution or performance or the domicile of the parties, this Agreement is governed by the laws of the Province of Ontario excepting its choice of law provisions. Any controversy or claim arising out of or relating to this Agreement shall be settled by arbitration administered by the Canadian Arbitration Association under its applicable arbitration rules. The number of arbitrators shall be three. The place of arbitration shall be Toronto, Ontario. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction over the dispute. Any decision rendered by the arbitrators shall be binding upon the Parties. In any proceeding by which one Party either seeks to enforce its rights under this Agreement or seeks a declaration of any rights or obligations under this Agreement, the prevailing Party, to the fullest extent permitted by law, shall be awarded its reasonable attorneys’ fees, and costs and expenses incurred. The rights and obligations of the Parties under this Agreement shall not be governed by the 1980 U.N. Convention on Contracts for the International Sale of Goods. The Uniform Computer Information Transactions Act, or any version adopted by any state, does not apply to this Agreement.
• Headings. Headings used in this Agreement are for convenience of reference only, and shall not be used to modify the meaning of or to interpret the terms and conditions of this Agreement.
• Communications. Customer acknowledges and agrees that iLobby may communicate information on product updates to Customer by sending service emails to Customer’s email addresses provided for creating user accounts in connection with the Services (“Admin User”). Stated service emails may also contain information about iLobby’s other product(s) that may benefit or otherwise be relevant to Customer’s rights under this Agreement. Each Admin User shall have an option to unsubscribe from such service emails by following the step(s) provided therein.
• Survival. The following sections/clause of this Agreement shall survive the termination or expiration of this Agreement: 1.9 (OWNERSHIP OF INTELLECTUAL PROPERTY), 2 (FEES AND PAYMENT TERMS), 3 (CONFIDENTIALITY, SECURITY AND PRIVACY), 4.4 (EFFECT OF TERMINATION), 7 (LIMITATION OF LIABILITY), and 8.10 (GOVERNING LAW; ARBITRATION).
• Amendments; No Waiver. This Agreement and each Purchase Form may be modified only by a written amendment signed by the Parties.  Any additional, supplementary or conflicting terms supplied by or on behalf of iLobby (whether in hard copy or electronic form), including those contained on or within any portal, mobile software application or any websites used to access or receive the Services, are specifically and expressly rejected by Customer and shall be of no force or effect (even if “accepted” by any user of Customer, its Affiliates or Representatives as a condition to entering the applicable portal or website or downloading or using the applicable mobile software application).