Enterprise Terms and Conditions

These Plum Enterprise Terms and Conditions govern the Agreement between Client and Plum in relation to Plum’s provision of, and Client’s license to and use of the Services, and are deemed incorporated by reference into the Agreement.

1.    DEFINITIONS AND SERVICES

1.1    DEFINITIONS: In addition to any terms defined elsewhere in this Agreement, the following terms shall have the following meanings:

“Account Administrators” are the Client’s named support contacts with permission to escalate support requests to Plum.

“Affiliate(s)” means any entity that, directly or indirectly, controls, is under common control with, or is controlled by a Party. For this purpose, “control” means the power to direct or cause the direction of the management or policies of such entity, whether through beneficial ownership of voting securities, by contract, or otherwise. 

“Agreement” means the agreement, including the SOW or similar documentation, pursuant to which the Client agrees to license from Plum and use, and Plum agrees to provide to Client, the Services. The Agreement includes these Plum Enterprise Terms and Conditions, which are deemed incorporated by reference into and govern the Agreement. 

“Applicable Law(s)” means any applicable statute, regulation, by-law, or ordinance in force and applicable that is made or given by any regulatory or self-regulatory body having jurisdiction over a Party from time to time.

“Candidate” means an individual not currently employed by Client who applies for employment with Client and is assessed via Plum’s Platform.

“Business Day” means any day other than a Saturday, Sunday or a day that is a statutory holiday in the Province of Ontario.

“Client” means the entity identified as the Client in the Agreement and includes all Client Affiliates, if any. 

“Client’s Affiliate” means an Affiliate of Client that is identified in the SOW.

“Client Representative(s)” means Client’s directors, officers, advisors, agents, representatives, independent contractors, partners, workmen and employees.  

“Client User” means a person who is an Employee or under contract with Client and who is authorized by Client to have access to the Services pursuant to this Agreement. 

“Effective Date” means the effective date identified in the Agreement.

“Employee” means a person who is currently employed by Client.

“Employee Candidate” means an Employee who completes an assessment and provides or makes available the results thereof to Client for the purposes of evaluating that person’s competencies, professional development, or suitability for transition to a new or different role.

“Fees” means all fees required to be paid by Client to Plum for the Services under this Agreement as set out in the SOW.  

“Intellectual Property Rights” means all intellectual property and proprietary rights, including, but not limited to, patents, trade secrets, trademarks, service marks, trade or business names, copyrights and other rights in works of authorship (including rights in computer software), moral and artists’ rights, design rights, domain names, know-how, database rights and semi-conductor topography rights and whether any of the foregoing are registered or unregistered and all rights or forms of protection of a similar nature in any country.

“Party” means Client or Plum singularly, and “Parties” means Client and Plum collectively.

“Personal Information” means information about an identifiable individual, irrespective of the medium in which it is collected, used, disclosed, or stored, other than information that is publicly available.

“Platform” means Plum’s proprietary predictive talent acquisition and management software-as-a-service solution as more particularly described in the Agreement, which may include Discovery Survey, Match Criteria Survey, Talent Recommendation Engine, Plum Profile, Match Criteria Catalogue, Talent Groups, Talent Maps, Employee Interest, Leadership Potential, and Recruitment Analytics Dashboard.

“Plum” means Plum.io Inc. 

“Plum Representative(s)” means, without limitation, directors, officers, advisors, agents, representatives, independent contractors, partners, workmen and employees of Plum as well as its subcontractors.

“SOW” means a statement of work or similar order document which the Parties may enter into from time to time pursuant to this Agreement which identifies the services Plum will provide to Client (“Services”) and the applicable Fees and other commercial terms.  

1.2    SERVICES: 

1. The Services will be provided to the Client and those Client Affiliates expressly identified in the SOW; and

2. The total aggregate number of Client Users shall not exceed the amount identified in the SOW.

2.    DATA GOVERNANCE

2.1    2.1    Client Data (as defined in Section 4.2), which is: (a) collected by Plum and/or any Plum Representatives pursuant to this Agreement; (b) provided to Plum and/or any Plum Representatives by Client and/or any of the Client Representatives; or (c) entered into Plum’s systems by Client and/or any of the Client Representatives, is and shall remain Confidential Information (as defined in Section 12.1) of Client and/or the respective Client Representative, and may only be used as expressly permitted by Client in advance in writing. Notwithstanding the foregoing, (i) Plum is hereby permitted to use all Client Data provided in connection with the Services and work to be performed by Plum hereunder in order to provide such Services and complete such work, (ii) Client acknowledges that Plum may anonymize and aggregate Client Data, and other applicable information or data that is received by and stored on Plum servers or other media (collectively, “Anonymized Data”), and (iii) Plum is the sole owner of, and therefore entitled to use Anonymized Data, subject to Plum’s privacy policy found at https://www.plum.io/privacy. 

2.2    Plum will employ industry appropriate safeguards to protect Client Data and its transmission to Client, and provide reasonable safeguards against accidental, unlawful or unauthorized access to, use, destruction, loss, alteration, disclosure, or transfer of Client Data.  

3.    CLIENT OBLIGATIONS

Client acknowledges and agrees that Client shall meet certain obligations contained in the Agreement (including the SOW) to facilitate Plum’s delivery of the Services.  

3.1    Within thirty (30) days of Client hiring a Candidate assessed via Plum’s Platform, Client will identify Candidate as hired within the Platform.  

3.2    The Client is responsible for obtaining and maintaining equipment, hardware, software, and ancillary services which are compatible with, and needed to connect to, access, or otherwise use, the Services, including maintaining appropriate anti-virus software and other security measures in relation thereto. 

3.3    Client will provide Plum with reasonable notice of any changes in Client’s designated Account Administrator(s).

4.    INTELLECTUAL PROPERTY RIGHTS

4.1    Ownership / Licence to use Services. Client acknowledges and agrees that Plum owns all Intellectual Property Rights in the Services, including without limitation the Platform, together with any and all improvements, modifications and/or enhancements thereto. Subject to the terms and conditions of this Agreement, Plum hereby grants to Client (including Client Affiliates identified in the SOW), for the Term of this Agreement, a non-exclusive, non-transferable right to access and use the Services, including, but not limited to, the Platform, solely for its internal business purposes (including the internal business purposes of Client Affiliates identified in the SOW).

4.2    Client’s Intellectual Property. Plum covenants and agrees that Client is the exclusive owner of (a) the pairing of a particular match criteria, as determined by Client in connection with a particular opportunity in the Client organization, (b) the list of Employee Candidates who have completed an assessment, (c) the names of Client Users accessing the Platform, and (d) the contents of any reports prepared exclusively for Client  (collectively, “Client Data”). For greater certainty, “Client Data” does not include Employee Candidate and Candidate responses to a Discovery Survey. 

4.3    Trademarks. Plum acknowledges that Client and the Client Representatives own all right, title and interest in and to their respective logos and trademarks, whether or not registered, and Plum shall not use or reproduce any of these logos or trademarks in any manner or for any purposes whatsoever without obtaining the prior written authorization of Client.

4.4    Logo Use. With Client’s prior written consent, Client grants to Plum a limited, non-exclusive, non-transferable, revocable licence to use the Client trademarks on any public domain marketing materials including, but not limited to, Plum’s website (www.plum.io), sales collateral, event and conference materials, social media advertising, and blog posts. Plum shall use Client’s trademarks according to the rights of usage and the quality norms presented by Client and according to future guidelines and instructions of the Client in this regard. 

4.5    Client Restrictions. Client and Client Representatives will not: (i) modify, translate or copy the Services or create any derivate works based on the Services; (ii) reverse engineer, de-compile, disassemble or otherwise attempt to discover the source code or underlying ideas or algorithms in the Services; (iii) rent, lease, distribute, license, sublicense, sell, resell, timeshare, offer in a service bureau, or otherwise make the Services available to any third party, other than to authorised parties as expressly permitted herein; (iv) publish or disclose to third parties any evaluation of the Services without the Plum’s prior written consent; (v) create any link to the Services or frame or mirror any content contained in, or accessible from, the Services; (vi) access the Services in order to build a commercially available product or service which competes with the Services; (vii) copy any features, functions, integrations, interfaces or graphics which are part of the Services; (viii) wilfully interfere with or compromise the security of Plum’s Platform; (ix) attempt to probe, scan or test the vulnerability of any Plum systems or to breach the security or authentication measures without proper authorization; (x) wilfully render or attempt to render any part of the Plum system unusable; or (xi) access, and will ensure Client Users do not access, the Services from jurisdictions subject to U.S. and/or Canadian sanctions.

4.6    Marketing Program Participation. With Client’s prior written consent, Client agrees to participate in Plum’s marketing programs commencing on Effective Date. Marketing materials that reference Client’s visual identity may include but are not limited to text, images, audio recordings, video recordings, social media posts, blog posts, webinar marketing, and event marketing.  

5.    INVOICING AND FEES 

5.1    As consideration for the provision of the Services by Plum, Client shall pay to Plum the Fees set out in the SOW.  All payments shall be made by Client not more than thirty (30) days from the date of each applicable invoice, without setoff or deduction.

5.2    Client acknowledges that Plum may, at its sole option, suspend the provision of Services if any Fees remain unpaid ten (10) days after Client receives notice that payment of an invoice is overdue. 

5.3    Any charges payable under this Agreement are exclusive of any applicable taxes, tariff surcharges or other like amounts assessed by any governmental entity arising as a result of the provision of the Services by Plum to Client under this Agreement, and such shall be payable by Client to Plum in addition to all other charges payable hereunder.

6.    REPRESENTATIONS AND WARRANTIES

6.1    Each Party represents and warrants that: (a) it is duly organized and validly existing under Applicable Law, and has the capacity and all rights and authorizations, and has obtained all consents, necessary to perform its obligations under this Agreement; (b) it will take reasonable precautions to prevent any viruses, worms, bombs, traps, Trojan horses or other code designed to disable, damage, destroy, collect information from, or interrupt normal services from being introduced to the Platform; (c) it is financially solvent, able to pay its debts as they mature, and possesses sufficient working capital to perform all of its duties and obligations under this Agreement; and (d) it will comply will all Applicable Laws and regulations. 

6.2    Disclaimer. EXCEPT AS SET OUT IN THIS AGREEMENT, ALL SERVICES ARE PROVIDED “AS IS” AND PLUM HEREBY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. PLUM SPECIFICALLY DISCLAIMS ALL IMPLIED CONDITIONS AND WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, PLUM MAKES NO WARRANTY OF ANY KIND THAT THE SERVICES, OR ANY PRODUCTS OR RESULTS OF THE USE THEREOF, WILL MEET CLIENT’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 EXCEPT IF AND TO THE EXTENT EXPRESSLY SET FORTH IN THIS AGREEMENT, OR BE SECURE, ACCURATE, COMPLETE, FREE OF HARMFUL CODE OR ERROR FREE. ALL THIRD-PARTY MATERIALS ARE PROVIDED “AS IS” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD-PARTY MATERIALS IS STRICTLY BETWEEN CLIENT AND THE THIRD-PARTY OWNER OR DISTRIBUTOR OF THE THIRD-PARTY MATERIALS. 

6.3    Force Majeure. In no event will either Party be liable or responsible to the other Party, or be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, except for any payment obligation, when and to the extent such failure or delay is caused by or results from acts beyond the affected Party’s reasonable control, including acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, actions, embargoes or blockades in effect on or after the date of this Agreement, pandemics, epidemics, or other communicable disease outbreak, national or regional emergency, strikes, labor stoppages or slowdowns, or other industrial disturbances, passage of Applicable Law or any action taken by a governmental or public authority, including but not limited to imposing an embargo, export or import restriction, quota or other restriction or prohibition, or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation facilities. 

7.    INDEMNIFICATION

7.1    Plum Indemnification. Plum shall indemnify, defend and hold Client and Client Representatives and their respective successors and assigns harmless from and against any and all alleged and actual actions, causes of action, judgments, proceedings, claims, demands, suits, or liabilities, which are brought, advanced or alleged by a third party for injuries, damages, costs and expenses of any kind or nature whatsoever (collectively “Claims”) to the extent arising out of or in connection with, or caused directly by, Plum’s or any of the Plum Representatives’: (a) alleged or actual infringement, violation or misappropriation of third-party Intellectual Property Rights in respect of the Platform; or (b) gross negligence, fraud or willful misconduct.

7.2    Client Indemnification. Client will indemnify, defend and hold Plum and Plum Representatives and their respective successors and assigns harmless from and against any and all Claims to the extent arising out of or in connection with, or caused directly by, Client’s or any of the Client Representatives’ (a) gross negligence, willful misconduct or fraud; or (b) breach of the restrictions set out in Section 4.5.

7.3    Each Party (the “Indemnified Party”) will: (a) notify the other Party (the “Indemnifying Party”) of any actual or alleged Claim for which the Indemnifying Party is required to indemnify the Indemnified Party within a reasonable timeframe; and (b) permit the Indemnifying Party to assume sole control of the defense and settlement of such Claim, provided that (i) the Indemnified Party will have the right, at the Indemnifying Party’s sole cost and expense, to participate in the defense or settlement of such Claim, and (ii) the Indemnified Party will, at the Indemnifying Party’s sole cost and expense, provide the Indemnifying Party with reasonable assistance in connection with defending or setting any such Claim. 

7.4    In case the Platform is, or may become, the subject of such a Claim alleging infringement or misappropriation of any third party’s Intellectual Property Rights, Plum may at its expense and option, either: (i) procure for Client the right to continue to use the Platform; or (ii) modify the Platform so it becomes non-infringing; or (iii) terminate the Agreement and refund the Fees previously paid by Client for the remainder of the Term. The express obligations as set out in Sections 7.1 and 7.4 shall be Plum’s sole obligations and Client’s sole remedies with respect to any Claims for breach or infringement of Intellectual Property Rights relating in any way to the Platform and/or the Services.       

8.    LIMITATION OF LIABILITY 

8.1    NEITHER PARTY, NOR ANY PLUM REPRESENTATIVES OR CLIENT REPRESENTATIVES AS THE CASE MAY BE, IS LIABLE FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR AGGRAVATED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF OR RELATING TO ANY BREACH OF THIS AGREEMENT, WHETHER OR NOT THE POSSIBILITY OF SUCH DAMAGES HAS BEEN DISCLOSED IN ADVANCE BY THE OTHER PARTY OR COULD HAVE BEEN REASONABLY FORESEEN BY THE OTHER PARTY, REGARDLESS OF THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT, INDEMNITY, OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.

8.2    EACH PARTY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), INDEMNITY, OR OTHERWISE, SHALL NOT EXCEED THE TOTAL OF THE AMOUNTS PAID OR PAYABLE TO THE PLUM UNDER THIS AGREEMENT IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RIVES TO THE CLAIM. 

9.    TERM AND TERMINATION

9.1    The length of the term of the Agreement shall be as set out in the SOW.

9.2    Notwithstanding the provisions contained in this Agreement, the Parties hereto agree that this Agreement shall immediately terminate upon notice to either Party upon the occurrence of any one or more of the following events:

(a)    upon either Party filing an assignment in bankruptcy or becoming insolvent or bankrupt upon the appointment of a receiver for all or substantially all of the property or assets of said Party;  
(b)    upon either Party making any assignment or attempted assignment for the benefit of creditors; or 
(c)    upon the institution by either Party of any act or proceeding for the winding up of its business.  

9.3    In the event that either Party materially breaches any of its obligations under this Agreement, and such breach is not cured within fifteen (15) days after written notice is given to the breaching Party specifying the breach, then the Party not in breach may, by giving written notice thereof to the breaching Party, terminate this Agreement without any additional charge, penalty or expenses, upon the expiration of such fifteen (15) day period specified in such notice of breach.  

9.4    In the event the Agreement is terminated before the end of the Term by Plum pursuant to Sections 10.1 or 10.2, Client shall not be entitled to a refund of any prepaid Fees, and any and all unpaid Fees for the remainder of the Term shall immediately become due and payable by Client. 

9.5    In the event of any termination or expiration of this Agreement, Client shall be given sixty (60) days after such termination or expiration to retrieve its Confidential Information from Plum’s systems at no additional cost.

9.6    Any termination or expiration of this Agreement (howsoever occasioned) shall not affect any accrued rights or liabilities of either Party, nor shall it affect the coming into force or the continuance in force of any provision hereof which is expressly or by implication intended to come into or continue in force on or after such termination.

10.    RELATIONSHIP OF THE PARTIES 

10.1    The Parties acknowledge and agree that the Services performed by Plum and the Plum Representatives shall be as an independent contractor and that nothing in this Agreement shall be deemed to constitute a partnership, joint venture, agency relationship or otherwise between the Parties. Plum or a third party, as applicable, shall be responsible for the payment of all employment, income and social security taxes arising in connection with the compensation payable to the Plum Representatives involved in the provision of the Services hereunder. Plum shall have no claim against Client hereunder or otherwise for vacation pay, sick leave, retirement benefits, social security, worker’s compensation, health or disability benefits, unemployment insurance benefits, statutory deductions, or employee benefits of any kind.

11.    CONFIDENTIALITY AND PRIVACY

11.1    From time to time during the Term, either Party, the Plum Representatives and the Client Representatives, as the case may be (collectively, the “Disclosing Party”) may disclose or make available to the other Party, the Plum Representatives or the Client Representatives, as the case may be (collectively, the “Receiving Party”) information about its business affairs, goods and services, confidential information and materials comprising or relating to Intellectual Property Rights, trade secrets, third-party confidential information and other sensitive or proprietary information, as well as the terms of this Agreement, whether orally or in written, electronic or other form or media, and whether or not marked, designated or otherwise identified as “Confidential” (collectively, “Confidential Information”). For the sake of clarity, all Client Data shall be considered Client’s Confidential Information, and all of the Disclosing Party’s Personal Information shall be considered the respective Disclosing Party’s Confidential Information. Other than all Personal Information, Confidential Information does not include information that, at the time of disclosure:

 (a)    is or becomes generally available to and known by the public other than as a result of, directly or indirectly, any breach of this Section 12.1 by the Receiving Party;
(b)    is or becomes available to the Receiving Party on a non-confidential basis from a third-party source, provided that such third party is not and was not prohibited from disclosing such Confidential Information; 
(c)    was known by or in the possession of the Receiving Party before being disclosed by or on behalf of the Disclosing Party; or
(d)    was or is independently developed by the Receiving Party without reference to or use of, in whole or in part, any of the Disclosing Party’s Confidential Information.

11.2    The Receiving Party shall:

 (a)    protect and safeguard the confidentiality of the Disclosing Party’s Confidential Information with at least the same degree of care as the Receiving Party would protect its own Confidential Information, but in no event with less than a commercially reasonable degree of care; 
(b)    not use the Disclosing Party’s Confidential Information, or permit it to be accessed or used, for any purpose other than to exercise its rights or perform its obligations under this Agreement; and 
(c)    not disclose any such Confidential Information to any person, except to the Receiving Party’s representatives who need to know the Confidential Information to assist the Receiving Party, or act on its behalf, to exercise its rights or perform its obligations under this Agreement.

11.3    The Receiving Party acknowledges and agrees that: 

(a)    a breach of any of the covenants or provisions contained under this Section 12 would cause the Disclosing Party to suffer losses which could not be adequately compensated for by damages; 
(b)    in the event that a Disclosing Party seeks an order for specific performance, a mandatory or prohibitory injunction or any other equitable relief in connection with such a breach, such Disclosing Party will not be required to prove that damages are an inadequate remedy; and
(c)    the Receiving Party shall not, and hereby irrevocably waives any right it otherwise might have to, plead or in any other manner seek to rely on any contention that damages are or may be an adequate remedy for such a breach.

11.4    The Receiving Party shall be responsible for any breach of this Section 12 caused by any of its Representatives. 

11.5    If the Receiving Party is required by law or a court order to disclose Confidential Information belonging to the Disclosing Party, the Receiving Party may only disclose that portion so required and to the extent it is permitted to do so shall promptly notify the Disclosing Party prior to any proposed disclosure. The Disclosing Party may, at its sole expense, seek a protective order or take such other action as it deems necessary to ensure that confidential treatment will be accorded to its Confidential Information and in that case the Receiving Party shall, at Disclosing Party’s sole expense, provide cooperation in such efforts as is reasonably requested. In the event that such protective order or other remedy is not obtained, the Receiving Party shall furnish only that portion of the Confidential Information that is legally required. 

11.6    In the course of performing obligations under this Agreement, the Parties may exchange Personal Information.  Where Personal Information is exchanged, the Disclosing Party acknowledges the obligation to establish a legal basis for such transfer based on the applicable privacy legislation in the jurisdiction in which the transfer originates and to communicate to the Receiving Party the purpose of the transfer.  The Receiving Party acknowledges its obligation to use Personal Information only for the purposes communicated to the Receiving Party by the Disclosing Party.  Where a transfer of Personal Information includes a transfer of control over the Personal Information, the Receiving Party shall protect such Personal Information in accordance with the Receiving Party’s privacy policy and practices and comply with the applicable privacy legislation in the jurisdiction governing the Receiving Party.  Where the Receiving Party is acting solely as a processor acting on the Personal Information, the Receiving Party will use and protect such Personal Information in accordance with the terms established for the transfer. In all cases the Receiving Party shall disclose Personal Information to a third party only with the consent of the Disclosing Party and the Receiving Party shall ensure that the third party implements controls for the protection of such Personal Information that are no less effective than those provided by the Receiving Party. 

11.7    The Receiving Party acknowledges that all right, licence, title and interest in and to the Confidential Information is and shall remain the sole and exclusive property of the Disclosing Party. Except as explicitly stated in this Agreement, nothing shall be construed as granting or conferring any right, title or interest of any nature whatsoever to the Receiving Party in or to the Receiving Party’s Confidential Information.

11.8    At the termination or expiration of the Agreement, or earlier at the request of the Disclosing Party, the Receiving Party shall either promptly destroy or return, or cause to be destroyed or returned, all of the Disclosing Party’s Confidential Information stored or maintained (in whatever form) by, or in the possession or within the control of, the Receiving Party or any of its Representatives. At the Disclosing Party’s request, an officer of the Receiving Party shall certify in writing, no later than ninety (90) days following the date of termination or expiration of this Agreement, to the Disclosing Party that the Receiving Party has returned or destroyed the Disclosing Party’s Confidential Information. The provisions of this Section (Confidentiality and Privacy) shall not apply to copies of electronically exchanged Confidential Information made as a matter of routine information technology backup and to Confidential Information or copies thereof which must be stored by the Receiving Party according to Applicable Law, provided that such Confidential Information or copies thereof shall be subject to an indefinite confidentiality obligation according to the terms and conditions set forth herein.

12.    MISCELLANEOUS

12.1    Notices. Any notice given by a Party under this Agreement shall be delivered by hand, registered mail, or e-mail to the address of the other Party as specified in this Agreement or any other address notified in writing to the other Party (provided email shall not be sufficient for notices of termination or an indemnifiable Claim).

If to Plum:

PLUM.IO INC.
151 Charles St W. Suite 100
Kitchener, Ontario N2G 1H6
Attn: CEO
legal@plum.io

Notices sent in accordance with this Agreement will be deemed effectively given: (a) when received, if delivered by hand, with signed confirmation of receipt; (b) when received, if sent by an internationally recognized overnight courier, signature required; and (c) when sent, if by e-mail (in each case, unless a bounce-back or error message received), if sent during Business Hours, and on the next Business Day, if sent after Business Hours (provided email shall not be sufficient for notices of termination or an indemnifiable claim). A copy of all notices to Plum must also be sent by email to legal@plum.com.

12.2    Currency. Unless agreed otherwise in the SOW, all statements of or references to dollar amounts in this Agreement are to lawful money of the United States (USD).

12.3    Assignment. Neither Party may assign or transfer this Agreement (except by operation of law or merger, in which case that Party shall provide the other Party with reasonable written notice of the assignment), or any of its rights or obligations hereunder, except with the prior written consent of the other Party, which consent shall not be unreasonably withheld, conditioned, or delayed. Any assignment or transfer or attempted assignment or transfer in violation of the foregoing shall be null and void. Notwithstanding the foregoing, either party may, without the consent of the other Party, assign this Agreement in its entirety (including all SOWs), to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other Party; provided the assigning Party gives the other party prompt written notice of such assignment.  

12.4    Entire Agreement. This Agreement and its attachments constitute the entire and only agreement between the Parties with respect to all of the matters herein and all other prior negotiations, representations, agreements, and understandings are superseded hereby; provided however that Users are subject to Plum’s Website Terms of Service found at https://www.plum.io/terms. In the event a conflict exists or arises between the terms and conditions of this Agreement and the terms and conditions of the Website Terms of Service, any such conflict shall be governed by the terms and conditions of this Agreement. Entering into the Agreement has not been induced by, nor do any of the Parties rely upon or regard as material, any representations or writings whatever not incorporated herein and made a part hereof. No agreements altering or supplementing the terms hereof may be made except by means of a written document signed by the duly authorized representatives of the Parties.

12.5    Binding Agreement. This Agreement shall enure to the benefit of and be binding upon the Parties and their respective heirs, executors, administrators, successors, legal representatives and permitted assigns.

12.6    Headings & Sections. The division of this Agreement into sections and the use of headings is for convenience of reference only and shall not affect the interpretation or construction of this Agreement.

12.7    Waiver. Failure of either Party to enforce a right under this Agreement shall not act as a waiver of that right or the ability to later assert that right relative to the particular situation involved.

12.8    Severability. If any provision of this Agreement is found by a court to be void, invalid or unenforceable, the same shall be reformed to comply with Applicable Law or stricken if not so conformable, so as not to affect the validity or enforceability of this Agreement.

12.9    Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the Province of Ontario.

12.10    Dispute Resolution. Any controversy, dispute, disagreement or claim arising out of, relating to or in connection with this Agreement or any breach thereof, including any question regarding its existence, validity or termination, shall be finally and conclusively resolved by arbitration under the UNCITRAL Model Law Rules and International Commercial Arbitration Act (R.S.O. 1990, c. I-9) (Ontario) (the “Rules”). There shall be one arbitrator selected in accordance with the Rules. The Parties shall equally share the fees of the arbitrator and the facility fees and the Parties shall each bear their own legal costs and expenses of the arbitration; provided, however, that the arbitrator shall have the authority to award fees, costs and expenses in its decision. The arbitration shall be conducted in Toronto, Ontario in the English language. Notwithstanding the foregoing, each Party shall have the right to seek injunctive or other equitable relief that may be related to the breach of confidentiality obligations or violation of the Intellectual Property Rights set forth in this Agreement.

12.11    Survival. Any provision of this Agreement which by its nature would survive the termination or expiration of this Agreement, shall do so.