Introduction

THIS SERVICES SUBSCRIPTION AGREEMENT (the “Agreement”) is made and entered into by and between Delta Analysis Ltd. with its principal offices at 713 Columbia Street, Suite 206, New Westminster, BC, Canada, V3M 1B2 (“Delta Analysis”) and its Customer (as defined in the applicable Services Agreement or customer account). This Agreement describes the terms under which Delta Analysis will make its services available to the Customer.
Delta Analysis reserves the right to change the Services Subscription Agreement from time to time.
Customer should review the Services Subscription Agreement regularly. Changes become effective thirty (30) days after they are posted, except if changes apply to new functionality, in which case they will be effective immediately. If Customer does not agree to the modified terms for the Service, the Customer may stop using the service at any time. If the Customer continues to use the Service, the Customer will be deemed to have accepted the modifications.
The parties agree as follows:

1. ORDERING AND SUBSCRIPTION PERIOD

1.1 Ordering.
By executing one or more Services Agreements under this Agreement or by signing up for a Delta Analysis account, Customer may obtain access to the content, data, application program interface (“API”) and other features offered through Delta Analysis’ proprietary platform of servers, software and technology (the “Services”). The specific Services available to Customer are identified in the Services Agreement or in Customer’s Delta Analysis account. All use of the Services by Customer is subject to the terms and conditions of this Agreement.
1.2 Subscription Period.
The period of access to the Services will be specified in the applicable Services Agreement (“Subscription Period”) and if no Services Agreement is executed, or no period is specified, the Subscription Period will be twelve (12) months.
A Services Agreement is not cancelable by Customer during a Subscription Period. At the end of the initial Subscription Period, the Subscription Period will automatically renew for a successive twelve (12) month term, unless Customer notifies Delta Analysis in writing 90 days prior to the termination of the current Subscription Period, or as otherwise specified in a Services Agreement. Any renewals will be at Delta Analysis’ then-current rates.

2. PLATFORM USE AND RESTRICTIONS

2.1 Services License.
Delta Analysis hereby grants to the Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right and license to access the Services specified in the Services Agreement or in Customer’s account during the Subscription Period for its internal business purposes. Should the Subscription Period end, or should Customer decline to renew their Services Agreement, then Customer’s license to the Services specified in the Services Agreement will be revoked.
2.2 Data License.
Delta Analysis hereby grants to Customer a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to license to access and use the data provided to Customer during the Subscription Period for its internal business purposes and to maintain Delta Analysis-supplied data in Customer’s database for the purpose of performing calculations and mapping. Only the Customer team specified in the Services Agreement is permitted to use the data, and if no team is specified, then any Customer teams are permitted to use the data.
Should the Subscription Period end, or should the Customer decline to renew their Services Agreement, then the Customer’s license to the data specified in the Services Agreement (including data cached by Customer) will be revoked and the customer will be required to sign the Delta Analysis Data Deletion Agreement.
2.3 Account.
To use the API, you will be asked to create a Delta Analysis account. As part of the account creation process, you’ll be asked to provide your name, e-mail address, and create a password. Until you register for a Delta Analysis account, your access to the Services will be limited to what is available to the general public. When registering for a Delta Analysis account, you must provide true, accurate, current and complete information about yourself as requested during the account creation process. You must keep that information true, accurate, current.
By signing up for the API, Customer agrees that you are liable for any information that was falsified in the API sign up process and any activities that you did with a falsified name.
Customer acknowledges that Delta Analysis accounts are secure. You are not permitted to share your account login with any other individuals or companies, or to enable any other individuals or companies to use the Delta Analysis Services. You are also solely responsible for all acts and omissions of anyone who has access to or otherwise uses any Customer Application.
You agree to take all reasonable precautions to prevent unauthorized access to or use of the Services and will notify us promptly of any unauthorized access or use. We will not be liable for any loss or damage arising from unauthorized use of your Delta Analysis account. You will be solely responsible, at your own expense, for acquiring, installing and maintaining all hardware, software, third party applications, and other equipment as may be necessary for you and each End User to connect to, access, and use the Services.
2.4 Account Password and Security.
Customer’s account with Delta Analysis will provide Customer with access to the Services and other functionality that Delta Analysis may provide from time to time. Customer shall protect its passwords and take full responsibility for Customer’s own as well as any third party use of the Customer account. Customer is solely responsible for any and all activities that occur under its accounts, except for any activities performed by Delta Analysis as set forth herein. Customer agrees to notify Delta Analysis immediately upon learning of any unauthorized use of its account or any other breach of security.
2.5 Services Modifications.
Delta Analysis is constantly innovating in order to provide the best possible experience for its customers. Customer acknowledges and agrees that the form and nature of the Services that Delta Analysis provides may be modified from time to time without prior notice to you, including without limitation security patches, added functionality, and other enhancements. Changes to the form and nature of the Services will be immediately effective with respect to all versions of the Services.
2.6 Restrictions.
Customer shall comply with and shall not permit its End Users to:
(i) resell, sublicense, distribute or otherwise provide access to the Services, or data or information contained in or derived from the Services, to any third party or use the Services outside the scope of the license granted herein;
(ii) copy, modify, adapt, translate, prepare derivative works from, reverse engineer, disassemble, or decompile the Services or otherwise attempt to discover any source code or trade secrets related to the Services; or
(iii) use the trademarks, trade names, service marks, logos, domain names and other distinctive brand features or any copyright or other proprietary rights associated with the Services for any purpose without the express written consent of Delta Analysis.

3. TERM OF THE AGREEMENT

The term of this Agreement commences on the Effective Date and continues until all Subscription Periods, including any renewals thereof, have been terminated.

4. CHARGES, PAYMENT AND TAXES

4.1 Fees.
For accounts who sign up on our website, the Customer agrees to pay in accordance with the listed rates in the Delta Analysis pricing page, unless otherwise set forth in a Services Agreement between the parties.
4.2 Credit Card Payment Terms.
For accounts who sign up on our website, Delta Analysis will charge the credit card Customer has placed on file at the end of each month for that month’s usage.
4.3 Services Agreement Payment Terms.
Should Customer enter into a Services Agreement, then Customer will be billed for use of the Services in accordance with the applicable Services Agreement. The pricing specified in a Services Agreement will be firm for the initial term of the Services Agreement. Delta Analysis may provide notice of an increase in pricing in advance of Subscription Period renewal.
4.4 Payment.
Invoices will be due and payable thirty (30) days from date of invoice unless otherwise stated in Delta Analysis Order Form and will be paid in immediately available U.S. funds by wire transfer or other method as mutually agreed to by the parties. Any invoiced amount not paid by the due date will bear a late payment charge at the rate of one and a half percent (1.5%) per month (or such lower amount as may be required by law) until paid.
4.5 Taxes.
Fees do not include taxes and Customer shall pay, indemnify and hold Delta Analysis harmless from all applicable sales/use, gross receipts, value-added, GST or other tax on the transactions contemplated herein, other than taxes based on the net income or profits of Delta Analysis.

5. CONFIDENTIALITY

“Confidential Information” means, subject to the use license granted in Section 11.2, any non-public information relating to or disclosed in the course of this Agreement, including the Services and data or information contained in or derived from the Services. The receiving party will not share Confidential Information with third parties (except as otherwise provided in this Agreement, including Section 2), will use the same care to protect Confidential Information as it uses for its own similar information, but in no event less than reasonable care, and will use Confidential Information only as permitted in this Agreement and for fulfilling its obligations under this Agreement. The receiving party will also ensure that the persons it authorizes to access Confidential information have committed themselves to use and nondisclosure restrictions at least as strict as those contained in this Agreement and that the receiving party advises such persons of (a) the confidential nature of the Confidential Information and (b) their obligation to comply with such terms and conditions of this Agreement. The receiving party will be responsible for any breach of this Agreement by any persons to whom it discloses the other party’s Confidential Information. Confidential Information does not include information that: (a) is or becomes part of the public domain through no fault of the receiving party; and (b) was already in possession of the receiving party without restriction.
The receiving party may disclose Confidential Information if it is required to do so by law, so long as the receiving party provides the disclosing party with prompt notice and complies with any protective order imposed on such disclosure. At the request of the disclosing party, the receiving party will return all of the other party’s Confidential Information that is reduced to writing(s), drawing(s), schematic(s), or any other form of documentation, or destroy all such material, and permanently delete if in electronic form, and to certify the destruction to the disclosing party, provided however, if the Agreement is not terminated for cause, the Customer may retain copies of the reports or information printed or obtained through the Services subject at all times to the license restrictions specified in Section 2.4 and the non-disclosure requirements of this Section 5.

6. TERMINATION

6.1 For Cause.
Either party may terminate this Agreement and all Services Agreements, immediately upon written notice to the other party, if the other party:
(a) commits a material breach of this Agreement, which is capable of remedy, and fails to remedy the breach within thirty (30) days after written notice;
(b) commits a material breach of this Agreement which cannot be remedied; or
(c) is repeatedly in breach of this Agreement.
6.2 Effect of Termination.
Upon termination of this Agreement, all license rights hereunder will immediately terminate and Customer will:
(i) cease use of the Services, including all data or information contained in or derived from the Services;
(ii) destroy or (if requested by Delta Analysis) return to Delta Analysis all copies or other embodiments of the any and all data or information contained in or derived from the Services, and all other Delta Analysis Confidential Information; and
(iii) pay to Delta Analysis all amounts due and owing under this Agreement.
6.3 Data deletion.
Upon termination of this Agreement, Customer must delete all data it has received from Delta Analysis under all applicable Service Agreements, including data cached, and sign the Data Deletion Agreement in Exhibit A. Customer agrees that Delta Analysis has the right to perform an audit should Delta Analysis suspect that Customer is continuing to use Delta Analysis data.
6.4 Breach of other agreements.
Termination For Cause of another agreement between Delta Analysis and Customer will constitute a breach of contract/termination of this Agreement and trigger the effects of Termination including but not limited to paragraphs 6.2 and 6.3.

7. Disclaimer and limitation of liability

7.1 Disclaimer.
The services and all data and information obtained via the services are provided on an “as is” and “as available” basis. To the fullest extent permissible pursuant under applicable law, Delta Analysis makes to warranty and guarantee, express or implied, relating to the Services or customer’s use of the Services, or any data or information obtained via the Services or provided under this Agreement, including but not limited to any implied warranties or merchantability, satisfactory quality, non-infringement, and/or fitness for a particular purpose.
7.2 Limitation of liability
Except for a breach of Section 2.4 or Section 5, or with respect to a Party’s indemnification obligations, each Party’s entire aggregate liability to the other Party for any and all claims of whatever nature arising out of the provision and use of the Services or otherwise arising in connection with this Agreement shall not exceed the total amounts paid or payable to Delta Analysis during the six (6) month period immediately preceding the making of the claim pursuant to the Services Agreement under which the claim arose.
Except for a breach of Section 2.4 or Section 5, or with respect to a Party’s indemnification obligations, a Party shall not be liable to the other Party or any third-party claimant for indirect, incidental, consequential, reliance, or special loss or damages of any kind including but not limited to lost revenues, lost savings, lost business opportunity, or lost profits, whether based on a claim, or action of contract, warranty, negligence, strict liability, or other tort, breach of any statutory duty, indemnity or contribution, or otherwise, even if the party and/or its subsidiaries and affiliates have been advised of the possibility of such damages.

8. FORCE MAJEURE

Neither party shall be liable for any default or delay in the performance of its obligations hereunder (except for failure to pay amounts due) if and to the extent that such default or delay arises out of causes beyond its reasonable control, including without limitation acts of God, acts of war, acts of terrorism, earthquakes, fires, cable cuts, power outages, catastrophic network element failures, floods, terrorism, riots, civil disorders, rebellions, strikes, lockouts and labor disputes (individually, each such event a “Force Majeure Event”).

9. COMPLIANCE

9.1 Compliance with Laws.
Each party shall comply with all laws, statutes, ordinances, codes, regulations and other pronouncements having the effect of law of any government authority with respect to the Services and any data or information contained in or derived from the Services.

10. INFORMATION PRIVACY AND SECURITY

10.1 Compliance with Applicable Data Protection Laws.
Each party shall comply with all applicable laws and regulations relating to privacy, information security, data protection, and data breach notification (“Applicable Data Protection Laws”).
10.2 Status of the Parties under Applicable Data Protection Laws.
Each party agrees that Customer and Delta Analysis are independent “controllers” (or the equivalent thereof) under Applicable Data Protections Laws with respect to the personal data obtained or provided by Customer under this Agreement, unless otherwise stated.
10.3 Data Processing Agreement.
The Delta Analysis Data Processing Agreement (“DPA”) at is incorporated by reference into this Agreement. Each Party agrees to comply with its respective obligations in the DPA.
10.4 Use of Personal Data Subject to the GDPR.
Customer shall not use any personal data subject to the General Data Protection Regulation (Regulation (EU) 2016/679) (“GDPR”) unless it is for a business-to-business or recruitment purpose and Customer has a lawful basis to process such information for these purposes.
10.5 Privacy Policy.
Each Party shall maintain and make publicly available a privacy policy that 1) describes its information collection, use and disclosure practices in sufficient detail such that a reasonable consumer would understand such practices, and 2) contains all other required disclosures under Applicable Data Protection Law, and will comply with such privacy policy.
10.6. Information Security Program.
Customer will maintain a comprehensive written information security program which contains appropriate administrative, technical, and physical safeguards to protect the Services and any data contained in or copied, downloaded, or otherwise derived from the Services (“Service Data”) against anticipated threats or hazards to its security, confidentiality or integrity (such as unauthorized access, collection, use, copying, modification, disclosure, or unauthorized, unlawful, or accidental loss, acquisition, or damage).
10.7 Security Incident.
Customer will notify Delta Analysis in writing without undue delay (and in any event within 24 hours) whenever Customer reasonably believes an unauthorized access, acquisition, use, modification, disclosure, loss, or damage to any Service Data, or any other unauthorized processing of Service Data (“Security Incident”) has occurred. After providing notice, Customer will investigate the Security Incident, take all necessary steps to eliminate or contain the exposure of the data or information contained in or derived from the Services, and keep Delta Analysis informed of the status of the Security Incident and all related matters.

11. INTELLECTUAL PROPERTY AND CUSTOMER DATA

11.1 Customer agrees that, as between the parties, Delta Analysis owns all intellectual property rights and all other proprietary interests that are embodied in or practiced by the Services and all data or information contained in or derived from the Services (other than Customer Data as defined below). Delta Analysis grants no rights other than the rights expressly granted to Customer under this Agreement.
11.2 Delta Analysis agrees that, as between the parties, Customer owns all data directly provided by Customer to Delta Analysis for use with the Services (“Customer Data”). Notwithstanding anything to the contrary in this Agreement, including Section 5 (confidentiality), Customer hereby grants to Delta Analysis a perpetual license to use such Customer Data, without attributing Customer Data to Customer, for enhancing the Services, Delta Analysis’ methodologies, and Delta Analysis’ products and services. This license includes the right to use Customer Data in the aggregate and with other data and to create derivative datasets for use in Delta Analysis’ products and services.
11.3 Customer represents and warrants that (i) Customer Data has been collected, processed and provided to Delta Analysis in accordance with all Applicable Data Protection Laws, and Customer’s privacy policy, and (ii) Customer has provided any required notices and obtained any required consents under Applicable Data Protection Laws concerning the collection, use, processing, transfer and disclosure of personal information contained in Customer Data.

12. REGULATORY REQUIREMENTS

If a regulatory body, or a court of competent jurisdiction, issues a rule, regulation, law or order that has the effect of materially increasing the cost to provide use of the Services or canceling, changing, or superseding any material term or provision of this Agreement (collectively “Regulatory Requirement”), this Agreement shall be deemed modified in such a way as the parties mutually agree is consistent with the form, intent and purpose of this Agreement and is necessary to comply with such Regulatory Requirement. Should the parties not be able to agree on modifications necessary to comply with a Regulatory Requirement within thirty (30) days after the Regulatory Requirement is effective, then, upon written notice, either party may, to the extent practicable, terminate that portion of the Agreement impacted by the Regulatory Requirement.

13. INDEMNIFICATION

13.1 By Delta Analysis.
Delta Analysis will defend, hold harmless, and indemnify Customer and Customer’s affiliates (and their respective employees, directors, and representatives) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorney’s fees, alleging that Customer’s user of Delta Analysis’ Services as permitted hereunder infringes or misappropriates any copyright, trademark, service mark, trade secret or United States patent of a third party (“IP Infringement Claims”). Notwithstanding the foregoing, Delta Analysis shall have no responsibility for IP Infringement Claims resulting from or based on:
(i) Customer’s use of the Services other than as contemplated or permitted by this Agreement;
(ii) modifications to the Services made by a party other than Delta Analysis or its designee;
(iii) Customer’s failure to implement updates provided Delta Analysis specifically to avoid infringement;
(iv) Customer’s combination or use of the Services with equipment, devices or software not supplied by Delta Analysis; or
(v) Customer’s use of the Services after notice of an IP Infringement Claim or after Delta Analysis has terminated this Agreement.
This section provides Customer’s exclusive remedy for any third-party infringement claims or remedies. The total indemnification obligation by Delta Analysis shall not exceed the annual contract value paid by Customer to Delta Analysis in the prior twelve (12) months.
13.2 By Customer.
Customer shall defend, hold harmless, and indemnify Delta Analysis and its affiliates (and their respective employees, directors, and representatives) from any claim or action brought by a third party, including all damages, liabilities, costs and expenses, including reasonable attorney’s fees, to the extent resulting from or in connection with
(i) Customer’s use of the Services in breach of the Agreement; or
(ii) the violation of any copyright, trademark, service mark, trade secret or United States patent by Customer’s use of Delta Analysis services.

14. MISCELLANEOUS

14.1 Independent Contractors. Delta Analysis and Customer are, and shall be deemed to be, independent contractors with respect to the subject matter of this Agreement. Nothing contained herein shall constitute this arrangement to be a joint venture or a partnership between Delta Analysis and Customer.
Neither party has any authority to enter into agreements of any kind on behalf of the other party.
Each party shall be solely responsible for and shall hold the other harmless from any and all claims for taxes, fees, or costs, including but not limited to withholding, income tax and workers’ compensation.
14.2 Waiver.
No term or provision of this Agreement shall be deemed waived and no breach or default shall be deemed excused unless such waiver or consent shall be in writing and signed by the party claimed to have waived or consented. No consent by any party to, or waiver of, a breach or default by the other party, whether express or implied, shall constitute consent to, waiver of, or excuse for any different or subsequent breach or default or shall be construed as a continuing waiver of such right or a waiver of any other provision hereunder.
14.3 Partial Invalidity.
In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be invalid, illegal or unenforceable in any respect, such invalidity, illegality or unenforceability shall not affect any other provision of this Agreement, and both parties shall negotiate in good faith to substitute for such invalid, illegal, or unenforceable provision a mutually acceptable provision that is consistent with the original intent of the parties.
14.4 Amendment.
Except as otherwise provided in this Agreement, this Agreement may be amended by the parties hereto at any time only by execution of an instrument in writing signed on behalf of each of the parties hereto. Any extension or waiver by any party of any provision hereto shall be valid only if set forth in an instrument in writing signed on behalf of such party.
14.5 Binding Effect.
If any provision of this Agreement is held to be invalid or unenforceable, the remainder of the Agreement will remain in full force and effect, and such provision will be deemed to be amended to the minimum extent necessary to render it enforceable.
14.6 Survival.
Termination of this Agreement shall not affect either party’s accrued rights or obligations under this Agreement as they exist at the time of termination, or any rights or obligations that either expressly or by implication continue after this Agreement has ended, including Sections 2.2, 4, 5, 6.2, 7, 9, 10, 12, and 13.
14.7 Assignment.
Customer may not assign or otherwise transfer this Agreement or any rights or obligations hereunder without the prior written consent of Delta Analysis. Notwithstanding the foregoing, Customer may assign this Agreement, in whole or in part, to any subsidiary of Customer or in connection with the sale or transfer of all or substantially all of the stock or assets of Customer, provided that
(a) Delta Analysis reserves the right to terminate this Agreement if it determines, in its sole and reasonable discretion, that the proposed assignee is a competitor of Delta Analysis or any of its affiliates, and
(b) the use of the Services, or data or information contained in or derived from the Services, by Customer’s assignee shall be limited to those rights granted to Customer under this Agreement or otherwise identified in the Services Agreement or in Customer’s Delta Analysis account prior to the time of such assignment.
Delta Analysis may assign this Agreement, in whole or in part, to an affiliate or other entity (including in connection with a merger, acquisition, reorganization or sale of all or substantially all of its assets) without the written consent of Customer. Subject to the foregoing, this Agreement will be binding upon, enforceable by and inure to the benefit of the parties and their respective successors-in-interest and assigns. Any attempted assignment that does not comply with the terms of this Section shall be null and void.
14.8 Marketing Materials and Communications.
Customer agrees that Delta Analysis may utilize Customer’s trademark and/or trade name solely to identify it as a Delta Analysis’ Customer and to explain the use case Customer on the Delta Analysis website, in client lists and other marketing materials. Any other uses of Customer’s name and/or logo (other than as included in the Customer content and/or other items furnished to Delta Analysis by Customer) shall require Customer’s prior written consent.
14.9 Notices.
Unless otherwise specified, any notice or other communication required or permitted to be given hereunder shall be given in writing and delivered in person, sent by certified mail with the required pre-paid postage and return receipt requested, or delivered by a recognized courier service, shipment charges pre-paid, properly addressed to the individual signing this Agreement on behalf of the applicable party at its address specified in the opening paragraph of the Agreement and shall be deemed effective upon receipt.
14.10 Headings.
The headings and other captions in this Agreement are for convenience and reference only and shall not be used in interpreting, construing or enforcing any of the provisions of this Agreement.
14.11 No Third-Party Beneficiaries.
Except as specifically stated in this Agreement, this Agreement is not intended to be for the benefit of any third party, is not enforceable by any third party, and will not confer on any third party any remedy, claim, right of action or other right.
14.12 Governing Law.
This Agreement shall be governed by the laws of the Province of British Columbia (irrespective of its choice of law principles). Each party consents to the exclusive jurisdiction of the provincial and federal courts sitting in Vancouver, British Columbia, in any action, suit or proceeding hereunder.
14.13 Counterparts; Electronic Signature.
This Agreement may be signed in any number of counterparts with the same effect as if the signature on each such counterpart were upon the same instrument, and a facsimile transmission or electronic delivery of a manual signature (e.g., .pdf) shall be deemed to be an original signature.
14.14 Entire Agreement.
This Agreement, together with any Services Agreements, schedules and exhibits attached hereto, all of which are incorporated by reference, sets forth the entire understanding of the parties hereto with respect to the transactions contemplated hereby. Any and all previous agreements and understandings between or among the parties regarding the subject matter hereof, whether written or oral, are superseded by this Agreement.