fbpx

Last update: April 8, 2019

This is a legally binding Master Service Agreement between two parties. The first party is Certn (Canada), Inc., a British Columbia corporation doing business as Certn (“Certn”). The second party is either:

  1. the company, partnership, association, government agency, or other organization that you identified in your registration on our website; or
  2. you personally, if you did not identify a company, partnership, association, government agency, or other organization on the registration page.

The word “Client” by itself in the rest of this agreement means this second party. By signing this agreement in any manner, you personally confirm to us that the company, partnership, association, government agency, or other organization identified either on the registration page that you completed or in a document saying that you agree to this agreement:

  1. is validly organized, existing, and in good standing with its jurisdiction of organization;
  2. is a legitimate business, non-profit, or government organization;
  3. has the power to enter into this agreement;
  4. is not entitled to sovereign or governmental immunity from suit or liability related to this agreement;
  5. does not violate any law or any organizational charter, bylaws, or similar documents by entering this agreement;
  6. is not the subject of any bankruptcy, insolvency, conservatorship, or similar proceeding known to it;
  7. has received all necessary organizational and governmental authorizations needed to enter into this agreement and make it binding; and
  8. has given you personally the actual authority to sign this agreement on its behalf.
  1. DEFINITIONS
    1. Confidential Information means all financial, business, marketing, operations, technical, product, customer, and economic information (including summaries and other materials prepared by or on behalf of a recipient that restate, summarize, or otherwise use any Confidential Information), whether tangible or intangible, that is provided by one Party to the other Party. However, Confidential Information does not include any information or portion thereof that: (i) was known to the recipient without obligation of confidentiality before receipt thereof under this Agreement other than through the Parties’ discussions leading to this Agreement; (ii) is separately disclosed to the recipient by a third person who has a right to make such disclosure without any obligation of confidentiality; (iii) is or becomes generally publicly known without violation of this Agreement by the recipient; (iv) is independently developed by the recipient or recipient’s employees without reference to the Confidential Information; or (v) is approved in writing by the disclosing Party for release.
    2. Losses” means any and all liabilities, obligations, monetary losses, damages, deficiencies, penalties, taxes, levies, fines, judgments, settlements, and costs and expenses, including but not limited to reasonable legal fees and disbursements, and accountants’ fees and disbursements.
    3. “Permitted Use” or “Permissible Purpose” shall strictly mean the use of the Certn Services for the purpose specified by the Client such as pre-employment screening, tenant screening, credit adjudication or client on-boarding.
    4. Marks” means the Client Marks and the Certn Marks.
    5. Client Marks” shall mean the Client’s domain names, trademarks, service marks, trade names, corporate names and proprietary logos.
    6. “Applicant” or “Candidate” A prospective employee, Client, contractor, or tenant to which a Client seeks to do business with.
    7. Certn Application” means the application, website or Application Programming Interface (the “API”) provided by Certn, which enables prospective applicants to apply for employment and/or the Client to submit, access and/or evaluate applications for employment though Certn’s proprietary data and reporting systems. Once an Applicant has applied for a position of employment with the Client, the Client will select the information to be contained in the Certn Report Information and provide the Applicant’s email to Certn.  In cases where Applicant consent is required, Certn will email the Applicant and request their consent as part of the background screening process. Once consent is obtained from the Applicant, Certn will submit the information to the appropriate third party entity where applicable (ie. Royal Canadian Mounted Police) to complete the service. The results will be made available to both the Applicant and the Client through the Certn Application. For greater certainty, in the event that an Applicant does not reply to a request for consent or a request for providing other information as part of the background screening process, Certn will follow up with the Applicant as required in order to provide the Certn Report Information.
    8. Certn Marks” shall mean Certn’s domain names, trademarks, service marks, trade names, corporate names and proprietary logos.
    9. “Certn Check” means a background check that generates Certn Report.
    10. “Certn Report Information” means the information that may be accumulated on an Applicant depending on the products/services requested by the Client.
    11. “Identifying Information” name, previous name, date of birth, Social Insurance Number, addresses, driver ‘s license number, previous employers and education).
    12. The “Services” means the following requests for information selected by the Client on the Certn Application:
    13. “Public Records Search” publicly available criminal and court cases/filings, fraud watchlists, public safety check, sex offender registry check, global clearance check as well as information that may affect creditworthiness, such as judgements, bankruptcies, consumer proposals and registered items.
    14. “Criminal Record Check” a named based search, completed through Federal, State and County Courts in the United States, the Royal Canadian Mounted Police (“RCMP”) and their databases in Canada, or in other countries, the generally accepted National Repository of Criminal Records.
    15. “Education Verification” contacting educational institutions to verify degrees, diplomas, accreditations, or other accomplishments.
    16. “Employment Verification” contacting previous employers to verify employment, length of employment, and position of employment.
    17. “Driver Abstract” a motor vehicle search is completed through the applicable provincial bodies to provide driver information, the current status of driver’s licence, conviction information, demerit points and driving suspensions.
    18. “SoftcheckTMor “Softcheck” shall mean the service provided by Certn to search for, score, and present Public Criminal Records (Canada), US National Criminal Record, International Criminal Records, Adverse Media, Sex Offender Registries, Public Safety Checks, SEC Violation Scans, High Risk Fraud Scans, Global Sanctions, Global Clearance Checks & Enforcement Checks (OFAC), Public Social Media Check, Alias’ and Identity Cross Checks and other relevant public information about an Applicant.
    19. “Credit History” or “Credit Report” is a record of payment history on current and previous financial obligations. That may contain:
    20. “Inquiries” a list of credit grantors and other parties authorized by the consumer and/or by law that have received all or part of an Applicant’s credit information.
    21. “Collections” information about collection matters and personal liability for debt.
    22. “Remarks” (all remarks that have been added to a credit file such as fraud alert or a consumer statement.
    23. Parties” means the Client and Certn and “Party” means either one of them.
    24. “Client Data” means the list of individual Applicants specific to the Partner; regardless of the employment, tenancy or other decision made by the Client.
    25. Permitted Use shall strictly mean the use of the Certn Application for the purpose of evaluating applicants for employment.
    26. Person” means an individual, partnership, corporation, trust, unincorporated organization, government, or any department or agency thereof, and the successors and assigns thereof or the heirs, executors, administrators or other legal representatives of an individual.
    27. “Subscriber” means an employee of the Client bestowed with the responsibility of using the Certn Application for its Permitted Use.
    28. “Fees” are the costs billed to the Client for use of the Certn Services outlined in Schedule “A” or on the pricing section of the Certn Application.
  2. SCOPE OF AGREEMENT
    1. This Agreement applies to any of those information services which the Client may desire to receive from Certn and which Certn offers to the Client via the Certn Application. If a separate agreement exists with Certn that both Parties signed and that states that our relationship will not be governed by any future electronic agreement, form we provide, or form on our website, then this Master Service Agreement does not replace the separate agreement unless (a) it does so as described in the separate agreement or (b) the Client signs another document that says they agree to this agreement. But, if that separate agreement is mainly a list of services, prices, payment terms, and a few additional terms or if it does not state that it is the complete agreement between the Client and Certn, then that separate agreement just sets the services and prices available under this agreement and any additional terms contained in it supplement this agreement.
  3. PROVISION OF CERTN APPLICATION
    1. Grant of Rights. Subject to the terms and conditions of this Agreement, Certn grants to the Client a limited, non-exclusive, non-sublicensable right and license to use the Certn Application and Services.
  4. CERTN RESPONSIBILITIES
    1. Installation and Set-up. Certn will provide support and documentation for the installation, configuration and set-up of the Certn Application as may be necessary to allow the use of the Certn Application for a Permitted Use.
    2. Support. Certn will provide such services as may be reasonably requested by the Client to enable the Client to use the Certn Application and to integrate the Certn Application with other products and services provided by the Client.
    3. Security. Certn and the Certn Application shall establish and implement administrative, technical and physical security safeguards that are commercially reasonable and in compliance with applicable industry practices. Certn shall promptly notify the Client if it becomes aware of any error, bug, or security breach, or any unauthorized use, reproduction or distribution of any of the Client Data, arising from the use of the Certn Application, or otherwise arising from the breach of any obligation under this Agreement by Certn, and shall use commercially reasonable efforts to prevent the continuation of any such breach or other act and to mitigate any losses arising therefrom.
    4. Consent.  When performing a Certn Check, with the exception of a Softcheck, it is Certn’s responsibility to verify the identity of the Applicant and receive the Applicant’s consent prior to performing a Certn Check.  An Applicant provides their consent by agreeing to the terms of use and explicitly agreeing to the appropriate disclosures and consents required to perform the Certn Check.
    5. Compliance. Subject to the terms and conditions of this Agreement, Certn will use its commercially reasonable efforts in good faith to ensure compliance with all applicable local, national and international laws.
  5. CLIENT RESPONSIBILITIES
    1. Permissible Purpose. The Client certifies that they shall use the Certn Services for only the purpose of Pre-Employment or Tenant Screening and not for any other purpose unless agreed to in writing by Certn.
    2. Authorization. The Client certifies that it shall only request Certn Report Information pursuant to the authorization of the Applicant. Authorization at a minimum will take the form of the Client indicating to the Applicant a background check may be performed as part of the hiring process and the Applicant applying for a position of employment, or apartment with the Client. The Client certifies that such authorization will expressly authorize the Client to obtain the Certn Report Information, and will contain at a minimum the subject’s name, address, date of birth and digital verification or signature, which can be collected on the Certn Application by “upgrading” a report or sending a “background check” to an Applicant’s email.  The Client does not have authorization to request Certn Report Information on an individual unless that individual has applied for a position of employment as doing so would fall outside of the Permitted Use of the Certn Application. Notwithstanding the foregoing, the authorization process described above shall also be available to Client for current employees or contractors on a case-by-case basis where an employee’s or contractor’s current employment requires a Certn Report Information as part of their job-related function as determined by Client in accordance with its Background Verification policy.
    3. Purpose. The Client shall use Certn Report Information solely for the Client’s exclusive use and pursuant to the Applicant’s authorization to use such information solely for assisting with making an employment decision, and for no other purpose, subject however, to the additional restrictions set forth herein.
    4. Adherence to Law. Client represents, warrants and agrees to comply with all applicable laws. The Client agrees to ensure that no agreement, government order, or law binding the Client would prohibit our reporting to the Client. The Client confirms that they have independently educated themselves and their staff about their duties under applicable law. Certn is not a law firm. Certn does not provide legal advice or act as legal counsel. Client confirms that they are not relying on Certn to ensure compliance with applicable law. Client agrees to promptly notify Certn of any lawsuit or government investigation against the Client that involves any Certn Report Information.
    5. Obligations of End-Users under FCRA. The Client and Subscribers understand and agree to the Obligations of End-Users Under FCRA found here: https://hubs.ly/H0h9Hvj0
    6. Employment-Related Screening. By ordering or receiving a Certn Check for the Purpose of Employment-Related Screening, the Client certifies the following:
      1. The Client will use the information in the Report only as a “consumer report” under the FCRA and only for “employment purposes” under the FCRA (which, according to the Federal Trade Commission, includes relationships other than normal employment, such as individual independent contractors and individual insurance agents).
      2. The Client will use Certn’s online platform to initiate a Certn Check which will send the Applicant the required consent forms.
      3. (Applicable in the US only) The Client is either (1) not considering the Consumer as an applicant for a position regulated by either or both of (i) the federal department of transportation under a specific statute that allows the department to establish qualifications and maximum service hours for the trucking industry or (ii) a state transportation agency or (2) has interacted with the Consumer in some way other than mail, phone, computer, or similar means.
      4. The Client will not use (or permit anyone else to use) information in the Report in violation of any applicable federal or state, provincial or other equal employment opportunity, human rights law or other regulation.  It is the responsibility of the Client to ensure any Subscriber, or general individual that is involved in the hiring process for the Client, is both aware and trained with respect to the rules of the FCRA, Canadian Human Rights Act and other applicable legislation.  Any information that is obtained or reverse engineered through the Certn Application or Certn Information Report must not be used for decision making purposes if it violates the law. This includes but is not limited to information that might suggest the Applicant’s sex, sexual orientation, race, marital status, gender identity or expression, creed, age, colour, disability, and/or political/religious beliefs.  Ensuring these equal opportunity laws are met during the hiring process is the sole responsibility of the Client.
      5. The Client will provide the Applicant, before taking any adverse action based on information in the Certn Report, with the Summary of Rights and a copy of the report it received.
      6. (Applicable in the US only) The Client will not take any adverse action based on information in the Report unless: (1) the Client has given the Applicant a reasonable period after providing the notice described above (of at least 5 business days if the notice was mailed) in which to dispute or explain the information; (2) the Applicant has not disputed any information or that dispute has been resolved; (3) the Client has considered any explanation (including any evidence of rehabilitation) to the extent required by law; and (4) the information has a direct relationship to the Applicant’s duties that is sufficient to satisfy applicable law and Equal Employment Opportunity Commission guidance.
      7. When the Client takes adverse action based on information in the Report, the Client will give the Applicant oral, electronic, or written notice: (1) of the adverse action being taken; (2) of the name, mailing address, toll-free telephone number, and website address of Certn; (3) that Certn did not make the decision to take the adverse action and is unable to provide the reasons why the adverse action was taken; (4) that the Applicant can obtain a free copy of a report on the Applicant by requesting one from Certn within 60 days; and (5) that the Applicant may dispute the accuracy or completeness of any information provided by the consumer reporting agency.
      8. The Client will inform the Applicant of the reason for any adverse action taken based on information in the Report when applicable law requires.
    7. Tenancy-Related Screening. By ordering or receiving a Certn Check for the Purpose of Tenancy-Related Screening, the Client certifies the following:
      1. The Certn Report will be used only as a “consumer report” under the FCRA and only for screening current or prospective tenants of the Client or its client whose property the Client manages.
      2. The Client will use Certn’s online platform to initiate a Certn Check which will send the Applicant the required consent forms.
      3. The Client will not use (or permit anyone else to use) information in the Report in violation of any applicable federal or state, provincial or other fair housing, human rights law or other regulation.  It is the responsibility of the Client to ensure any Subscriber, or general individual that is involved in the tenant selection process for the Client, is both aware and trained with respect to the applicable laws in the Client’s jurisdiction.  Any information that is obtained or reverse engineered through the Certn Application or Certn Information Report must not be used for decision making purposes if it violates the law. This includes but is not limited to information that might suggest the Applicant’s sex, sexual orientation, race, marital status, gender identity or expression, creed, age, colour, disability, and/or political/religious beliefs.  Ensuring these laws are met during the tenant selection process is the sole responsibility of the Client.
      4. The Client will provide the Applicant, before taking any adverse action based on information in the Certn Report, with the Summary of Rights and a copy of the report it received.
      5. (Applicable in the US only) The Client will not take any adverse action based on information in the Report unless: (1) the Client has given the Applicant a reasonable period after providing the notice described above (of at least 5 business days if the notice was mailed) in which to dispute or explain the information; (2) the Applicant has not disputed any information or that dispute has been resolved; (3) the Client has considered any explanation (including any evidence of rehabilitation) to the extent required by law; and (4) the information has a direct relationship to the Applicant’s duties that is sufficient to satisfy applicable law and Equal Employment Opportunity Commission guidance.
      6. (Applicable in the US only) When the Client takes adverse action based on information in the Report, the Client will give the Applicant oral, electronic, or written notice: (1) of the adverse action being taken; (2) of the name, mailing address, toll-free telephone number, and website address of Certn; (3) that Certn did not make the decision to take the adverse action and is unable to provide the reasons why the adverse action was taken; (4) that the Applicant can obtain a free copy of a report on the Applicant by requesting one from Certn within 60 days; and (5) that the Applicant may dispute the accuracy or completeness of any information provided by the consumer reporting agency.
      7. (Applicable in the US only) The Client will inform the Applicant of the reason for any adverse action taken based on information in the Report when applicable law requires.
    8. Subscriber Training.  It is the responsibility of the Client to ensure all of their employees (“Subscribers”) have been trained with the following:
    9. Use of Certn Application. The Client is responsible for ensuring their Subscribers only use the Certn Application for its Permitted Use.  It is the Client’s responsibility to bring to the attention of Certn any use of the Certn Application that was outside of the Permitted Use within three days of becoming aware of the breach.
    10. No Decision.   The decision whether to hire or not hire an Applicant or rent to a tenant is the sole responsibility of the Client.  Certn makes no recommendation or opinion as to whether an Applicant should be hired or not hired for a position of employment with the Client.   
    11. Resale and Distribution. Nothing in this certification, or elsewhere in this Agreement, is intended to allow the Client to purchase a Certn Report for the purpose of selling or giving the report, or information contained in or derived from it, to the subject of the report, or to any other third party, and the Client expressly agrees to refrain from such conduct.
  6. OWNERSHIP AND LICENSING
    1. Ownership Rights. The Parties acknowledge and agree that as between the Client and Certn: (i) The Client owns all right, title, and interest, including all intellectual property rights in and to the Client Data and Client Marks: and (ii) Certn owns all right, title and interest, including all intellectual property rights in and to the Certn Application and the Certn Marks.
    2. Grant of License. Subject to the terms and conditions of this Agreement, the Client grants to Certn a non-exclusive, non-transferable, non-sublicensable, revocable, limited license to use the Client Data strictly and exclusively for the purposes of facilitating the use of the Certn Application for a Permitted Use, and otherwise performing any obligations and exercising any rights under this Agreement.
    3. License Restrictions. Certn agrees that it will not permit or authorize any other Person to: (i) disseminate, distribute, re-distribute, sell, re-sell, sublicense, or otherwise make available all or any portion of the Client Data, in any form, including, without limitation, database, bulk, aggregate or other forms, to any third party; or (ii) copy, alter, display, perform, modify, translate, and/or create derivative works from the Client Data or in any other way use all or any portion of the Client Data for any purpose other than as permitted under this Agreement.
    4. Use of Marks. Neither Party shall use the other Party’s Marks without prior written consent in each case.  Each Party will not challenge the ownership of and/or title to the Marks or attack the validity of the Marks of the other Party. Each Party agrees that it shall not at any time apply for registration of any trademark, service mark, business name, domain name or other designation that would be confusingly similar to, or that would otherwise adversely affect the ownership of the other Party’s Marks, nor take any other action that would affect ownership of the Marks of the other Party.
  7. FEES AND PAYMENTS
    1. Billing The Client will be paying all amounts payable with respect to their use of the Certn Application. The Client will pay Certn the Fees monthly upon receipt of an invoice from Certn in accordance with the fees described in Schedule A.  Payment terms are Net 30 days.
  8. CONFIDENTIALITY
    1. Protection of Confidential Information. Each Party agrees that it will receive (the “Receiving Party“) and use Confidential Information of the other Party (the “Disclosing Party“) only as expressly permitted in this Agreement, and solely for the performance of its obligations and in the exercise of its rights pursuant to this Agreement, and will not otherwise employ such Confidential Information for any other use. For clarity: (i) all non-public information, and any other information forming part of the Client Data will be the Confidential Information of the Client, subject to the exceptions in Section 1.1; and (ii) all non-public information regarding the Certn Application will be the Confidential Information of Certn subject to the exceptions in Section 1.1.
    2. The Receiving Party will protect the Disclosing Party’s Confidential Information from unauthorized disclosure or access, including without limitation in the same manner and with the same degree of  care with which it protects its own confidential information, which the Receiving Party represents is with a high degree of care. The Receiving Party will not disclose, give, sell or otherwise transfer or make available, directly or indirectly, any of the Disclosing Party’s Confidential Information during or after the Term hereof, to any third party except: (i) as expressly permitted in this Agreement; (ii) as otherwise agreed in writing by the Disclosing Party; (iii) as required by applicable law, regulation or court order, provided that the Receiving Party will use reasonable efforts to give the Disclosing Party  at least three (3) days notice of the compelled disclosure and will provide assistance to the Disclosing Party as reasonably requested for the purpose of securing a protective order or other means of limiting the scope of any such disclosure; and (iv) to the Receiving Party’s employees and subcontractors on a direct “need to know” basis and who have executed or will execute written agreements with the Receiving Party with confidentiality obligations and use restrictions at least as restrictive as those imposed on the Receiving Party herein. Subject to the right of the Receiving Party to retain and use the Disclosing Party’s Confidential Information during the Term for the purposes specified herein, at any time upon written request by the Disclosing Party, or upon any termination or expiration of this Agreement, the Receiving Party will return or destroy any and all Confidential Information which it received from the Disclosing Party accompanied by a certificate confirming all such Confidential Information has been returned or destroyed; except that the Receiving Party may retain any copies of Confidential Information, regardless of whether such copies are in original form:
      1. included in any materials provided to legal counsel of the Recipient which are protected by solicitor-client privilege;
      2. as may be required to comply with any applicable laws or regulatory authority to which the Recipient is subject; or
      3. that are maintained as archive copies on the Recipient’s disaster recovery and/or information technology backup systems. Such copies will be destroyed upon the normal expiration of the Recipient’s backup files (such exceptions, collectively the “Destruction Exceptions”)
    3. Disclosure. The Parties acknowledge that the terms (but not the existence) of this Agreement are confidential and that written approval must be obtained from the other Party if a Party wishes to make any disclosure relating to such terms, except for disclosures to government agencies as  necessary in accordance with required filings, reports, investigations and proceedings. Notwithstanding the foregoing, either Party may disclose the terms of this Agreement solely to its advisors and other third parties involved in any merger, acquisition, financing, or equity investment relating to such Party; provided that such advisors and other third parties enter into written agreements with the disclosing Party to maintain such terms in confidence.
  9. PRIVACY
    1. In this section, “Personal Information” means any factual or subjective information, recorded publicly or not, about an identifiable individual, including information that relates to an individual’s: (a) personal characteristics (e.g., gender, age, income, home address or phone number, ethnic background, family status); or (b) activities or views (e.g., opinions expressed by an individual, or an opinion or an evaluation of an individual).
    2. With respect to any project, neither Party shall request Personal Information beyond what is necessary to fulfill the purposes for which it is requested. The purposes for requesting Personal Information shall be reasonable. Each of the Parties will agree in advance as to the type of Personal Information which is required to be made available. In the event that one Party makes Personal Information available to the other Party each of the Parties shall:
      1. comply with applicable Canadian federal and provincial privacy laws as amended from time to time;
      2. ensure that Personal Information will only be used, accessed, managed, transferred, disclosed to third parties or otherwise processed to fulfill the purposes for which it was made available;
      3. ensure that it has technological, physical and organizational security measures in place to protect Personal Information;
      4. not disclose the Personal Information or knowledge of its existence to any third party, except with the written consent of the other Party;
      5. ensure that any third parties to whom Personal Information is disclosed to is bound by the applicable terms of these provisions;
      6. reasonably cooperate with the other in connection with access requests for Personal Information;
      7. amend Personal Information only upon receiving instructions to do so from the other Party, its personnel or any other individual;  and
      8. promptly return to the other or destroy with care all Personal Information which is no longer necessary to fulfill the purposes for which it was made available, unless otherwise instructed by the other Party, its personnel or any other individual or required by law.
    3. Without limiting the generality of the foregoing, Certn shall not collect, create, handle, use, copy, sell or otherwise disclose, dispose or destroy any Personal Information except as necessary to perform its obligations under this Agreement.  Certn shall take all reasonable steps to protect the Personal information from loss, theft, or unauthorized use, access, disclosure, copying, alteration or destruction. “Reasonable steps” to be taken by Certn include, without limitation, the use of physical, organizational and technological measures to safeguard Personal Information, such as where appropriate, access controls, encryption or other suitable means. Wherever possible Certn  shall use information that has been made anonymous or scrubbed of personal identifiers before use. All Personal Information is the property of the Client, and Certn shall have no right in or to that information. Certn shall deliver to Client all such Personal Information in whatever form (or at Client’s request, destroy all such Personal Information), including all working papers, notes, memoranda, reports, data in machine readable format or otherwise, upon the completion or termination of the relevant work and/or this Agreement, or at such earlier time as the Client may request. Upon delivery of the Personal Information to Client, Certn shall have no right to retain that information in any form and shall ensure that no record of the Personal Information remains in Certn’s possession. Certn agrees to comply with all applicable Canadian federal and provincial privacy and anti-spam legislation.
  10. REPRESENTATIONS AND WARRANTIES
    1. Mutual Representations and Warranties. Each Party represents and warrants to the other Party that: (i) its execution, delivery, and performance of the Agreement will not conflict with or result in any breach of, or constitute a default under, any material agreement, instrument or undertaking to which it is a party or by which any of its property is bound; and (ii) it has the power and right to make and   carry out the terms of, and to grant to the other Party the rights provided hereunder, and each has taken, and will take, all actions, corporate or otherwise, necessary or advisable to authorize the execution, delivery and performance of, and to perform, its respective obligations under the Agreement.
    2. Certn represents, warrants, and covenants that:
      1. Certn will use commercially reasonable efforts to make the Certn Application available in accordance with service level commitments that are commensurate with industry standards.
      2. Certn will provide reasonable advance notice of any scheduled downtime, and will advise The Client of the reasons for any unscheduled downtime and the steps being taken to prevent any continuance or recurrence.
      3. The Certn Application does not and will not infringe the intellectual property rights of any third party.
      4. Certn has, and will continue to have, the unconditional and irrevocable right, power, and authority to grant and perform all licenses referred to in this Agreement.
      5. The Certn Application does not and will not contain any viruses or malicious code.
      6. Certn shall perform its services under this Agreement in a timely, professional and workmanlike manner with a degree of quality equal to or higher than applicable industry standards for similar services.
      7. Certn has a privacy policy regarding the collection, use and disclosure of personal information in Certn’s possession custody or control, or otherwise held or processed on its behalf and is in compliance with such privacy policy. Certn’s privacy policy may be updated from time to time subsequent to this Agreement.  A current version of Certn’s privacy policy can be referenced online at https://certn.co/privacy-policy/. [True and complete copies of all Certn’s privacy policies that are currently in force have been provided to the Client.]
      8. Certn has complied at all times, and is in compliance with all applicable laws regarding the collection, retention, use, processing, disclosure, transfer and protection of personal information, and all data breach notification requirements under the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5, FCRA and all other applicable privacy legislation.
  11. DISCLAIMERS, LIMITATIONS AND INDEMNITY
    1. Warranty Disclaimer. EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, NEITHER PARTY MAKES ANY, AND HEREBY DISCLAIMS ALL OTHER, WARRANTIES, REPRESENTATIONS OR CONDITIONS EITHER EXPRESS OR IMPLIED, AS TO ITS PRODUCTS, SERVICES, MATERIALS, OR INFORMATION PROVIDED HEREUNDER, AND HEREBY EXPRESSLY DISCLAIMS ALL IMPLIED WARRANTIES, REPRESENTATIONS OR CONDITIONS INCLUDING THOSE OF SYSTEM INTEGRATION, DATA ACCURACY, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE.
    2. Limitation Of Liability. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY AND PRIVACY OBLIGATIONS, AND SECURITY BREACH, NEITHER PARTY WILL BE LIABLE TO THE OTHER PARTY (INCLUDING SUCH PARTY’S AFFILIATES AND PARTNERS) FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFITS OR REVENUE, LOSS OF DATA, UNINTERRUPTED ACCESS, OR INTERRUPTION OF BUSINESS IN ANY WAY ARISING OUT OF OR RELATED TO THE AGREEMENT REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT PRODUCT LIABILITY OR OTHERWISE, EVEN IF ANY REPRESENTATIVE OF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF OR COULD HAVE FORESEEN SUCH DAMAGES. EXCEPT FOR A PARTY’S INDEMNIFICATION OBLIGATIONS, BREACH OF CONFIDENTIALITY AND PRIVACY OBLIGATIONS, AND SECURITY BREACH, AND EXCEPT FOR ANY AMOUNTS TO BE PAID BY EITHER PARTY TO THE OTHER PARTY HEREUNDER, THE AGGREGATE AND TOTAL LIABILITY OF EACH PARTY FOR ANY LOSSES OR ALLEGED LOSSES HEREUNDER, WHETHER IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, IS LIMITED TO AND WILL NOT EXCEED THE GREATER OF:
      (a) $500,000.00;  or
      (b) THE TOTAL AMOUNTS PAID BY THE Client TO CERTN PURSUANT TO THIS AGREEMENT FOR THE 12  MONTHS BEFORE THE LOSS AT ISSUE AROSE.
    3. Indemnity. Certn will indemnify, defend and hold the Client and the Client’s Affiliates and their respective affiliates, directors, officers, employees and agents (the “Client Indemnified Parties“) harmless from and against any and all Losses incurred by any of the Client Indemnified Parties that arise out of or are incurred in connection with any third party claim that arises out of relates to any: (i) allegation that the Certn Application infringes any intellectual property rights of a third party; or (ii) breach by Certn of any of its obligations, representations, or warranties under this Agreement, including as set out in Article 3, 7, 8, and 9. The Client Indemnified Parties may participate in the defense of any such claim. Certn, in the defense of any such claim, shall not, except with the written approval of the Client, consent to entry of any judgment  or enter into any settlement which: (i) would result in injunctive or other relief being imposed against the Client Indemnified Parties; or (ii) does not include as a term the giving by the claimant to the Client Indemnified Parties of an unconditional release from all liability in respect to any Losses. The Client will give written notice to Certn promptly after its receipt of any claim covered by this Section 10.3; provided, however, that the failure of The Client to provide timely notice will only relieve Certn from its obligations hereunder to the extent that such late notice prejudice its defense or resulted in increased Losses. Certn will have the right to control and direct the investigation, defense and settlement of such matter, provided that the Client Indemnified Parties may, at their own cost, participate in such investigation, defense and settlement of such matter and any appeal arising therefrom. Upon request, the Client Indemnified Parties will cooperate in all reasonable respects, at Certn’s cost and expense, with Certn and such attorneys in the investigation, trial and defense of such  claim, and any appeal arising therefrom.
  12. TERM AND TERMINATION
    1. Term. This Agreement shall commence as of the Effective Date and shall continue for a period of  three (3) years (the “Initial Term”). Thereafter, this Agreement shall continue for successive terms of one year each (each a “Renewal Term”), unless either Party notifies the other Party at least 30 days prior to the end of the Initial Term or the  first or any successive Renewal Term that it wishes to terminate this Agreement. The Initial Term and all applicable Renewal Terms are herein collectively referred to as the “Term”.
    2. Breach. If either Party is in material breach of any obligation hereunder, or the representations and warranties of a party set out in section 9 of this Agreement are determined to be false, the other Party may terminate this Agreement upon (30) days written notice without liability to the other Party unless the breach is cured within thirty (30) days following receipt of the notice.
    3. Termination by the Client. At any time during the term of this Agreement, the Client may terminate this Agreement by providing Certn thirty (30) days’ written notice of its intention to do so.
    4. Mutual Termination. Either Party may terminate this Agreement immediately upon the occurrence of the following events:
      1. if the other Party suspends operations other than in the normal course of business or ceases operations without a successor; or
      2. if the other Party seeks protection under any bankruptcy, receivership, trust deed, creditors arrangement, composition or comparable proceeding, or if any such proceeding is instituted against such party.
    5. Survival. The termination of this Agreement shall be without prejudice to any rights or obligations which shall have accrued prior to such termination and shall not diminish the binding force or effect of any of the provisions of this Agreement which are expressly or by implication provided to come into force upon or continue in force after such termination. Without limiting the foregoing, Sections 5, 6, 7, 8, 9, 10, 11, 12, 13 and 14 shall survive the expiration or termination of this Agreement.
  13. REMEDIES
    1. The Parties agree that a breach of this Agreement will result in immediate and irreparable injury and harm to the non-breaching Party. In such event, the non-breaching Party shall have the right to obtain an injunction, specific performance, and/or other equitable relief to prevent the breach under this Agreement; provided, however, that this shall in no  way limit any other remedies which the non-breaching Party may have including, without limitation, the right to seek monetary damages.
  14. GENERAL
    1. Assignment. Neither Party may assign this Agreement, or any rights hereunder, to any third party without the other Party’s prior written consent, except that either Party may, upon notice to the other Party, assign this Agreement to any Person acquiring all or substantially all of the former Party’s assets, or into or with which the former Party is merged.
    2. Governing Law and Jurisdiction. All questions concerning the validity, interpretation and performance of this Agreement shall be governed by and decided in accordance with the laws of the Province of British Colubia.
    3. Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the Province of British Columbia or another location mutually agreeable to the parties. An award of arbitration may be confirmed in a court of competent jurisdiction.
    4. Unenforceable Provision. If for any reason a court of competent jurisdiction finds any provision of this Agreement, or portion thereof, to be unenforceable, that provision of the Agreement will be enforced to the maximum extent permissible so as to effect the intent of the Parties, and the remainder of this Agreement will continue in full force and effect. Failure by either Party to enforce any provision of this Agreement will not be deemed a waiver of future enforcement of that or any  other provision.
    5. Entire Agreement. We may propose to change this agreement by posting a replacement on the Certn website and giving the Client notice. The Client agrees to the changed agreement on the earlier of (a) 30 days after Certn gives notice notice that the changed agreement has been posted, unless the Client closes their account or (b) when the Client agrees to a new agreement. Certn may also discontinue the Client’s access to the Services until confirmation that the Client has agreed to the changed agreement.
    6. Independent Contractors. The Parties are independent contractors. Neither this Agreement, nor any terms and conditions contained herein, shall be construed as creating a partnership, joint venture, agency, or employer-employee relationship or granting a franchise between the Parties.
    7. Cumulative Remedies. All legal and equitable remedies are intended to be cumulative.
    8. Notices. By electronically signing this agreement, the Client consents that Certn may send the Client information having to do with the Certn website or services electronically (such as on our website or through email), instead of on paper or by mail. For example, your consent applies to all information that any law requires us to give you in writing or by mail. We need not give you any information in paper or other non-electronic form. You may withdraw your consent, but only by closing your account with us and providing us an address to which we may send notices. You may update the information we use to send you information electronically at any time by logging into the Certn Application or contacting our support team.
    9. Headings. The division of this Agreement into sections and the insertion of headings are for convenience of reference only and are not intended to affect the construction or interpretation of this Agreement.
    10. Counterparts. To facilitate execution, this Agreement may be executed in multiple counterparts, each of which shall be deemed an original hereof, and all of which shall constitute a single agreement effective as of the date hereof. Any delivery of an executed copy of this Agreement by way of e-mail transmission of PDF files shall constitute delivery hereof, provided that any Party delivering by way of e-mail transmission of PDF files shall, as soon as reasonably practicable, deliver an originally executed counterpart of this Agreement to the other Party.
    11. Signed. The Client agrees to this agreement by signing it electronically. The Client signs this agreement electronically by clicking any button or any box associated with words that say you accept or agree to this agreement. The Client may also sign this agreement electronically by taking any other action that shows their intent to sign this agreement. The Client also agrees to this agreement if they electronically or manually sign a separate document that says they agree to this agreement.
    12. Countersigned. Certn agrees to this agreement if, after  a signature is received, Certn does one of the following:
      1. Sends the Client any email or other communication saying the agreement is accepted or agreed to;
      2. Sends the Client a username or password for the Client’s use in ordering services from Certn;
      3. Take any action that shows Certn’s intent to sign this agreement electronically.