For the purposes of the Agreement including of these General Terms and Conditions and of any agreement regarding the services of Supplier as well as for the purposes of the Schedules to these documents,
"Additional Purchased Applications" means those services or applications provided by Supplier that are purchased, directly or indirectly, from Supplier, after the purchase of the initial Purchased Applications by a person authorized to do so;
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity."Control", for purposes of this definition, means the direct or indirect ownership or control of a sufficient number of the voting interests of the subject entity to enable the holder of these interests to elect, if exercised, a majority of the directors or other administrators of the subject entity;
"Agreement" means the agreement between Supplier and Customer pertaining to the Purchased Applications which includes the End-User Consent, these Supplier General Terms and Conditions, their Schedules and any other document to which they refer;
"Applicant" means any person who is an employee or is seeking an employment or other association and who provides answers or Data to Customer or, if applicable, a customer of Customer to allow that Customer or a customer of Customer to evaluate such person or his or her application for employment, association, promotion or career move or career change;
"Applicant Consent Form" means the Applicant consent form that is annexed hereto and that an Applicant has to complete and deliver before entering Data;
"Applicant Data" means all data, information, elements, records and documentation provided by an Applicant as well as the results of the processing of such Applicant Data;
"Confidential Information" means information disclosed or made available by a Party to the other Party that is written, reduced in writing or in any other physical format and that is marked as confidential or proprietary and that has commercial value but shall not cover information that is known in the relevant trade or industry or that is accessible by legal means;
"Content" means tests, surveys, reports, models and other materials or processes developed by or purchased by Customer or its customers or licensed by or to Customer or its customers by a person other than Supplier;
"Court Order" means a final order, decision or judgement issued by an official, public and competent court having jurisdiction;
"Customer" means the customer of Supplier or the purchaser of the Purchased Applications that is a Party to the Agreement;
"Data" means, unless otherwise specifically and otherwise expressly indicated, any and all information, elements, records and documentation that is provided, directly or indirectly, to Supplier for processing through or is entered in or produced by the Supplier Platform or the Purchased Applications;
"End-User" means a person who is authorized directly or indirectly by Supplier or by a customer of Customer to use or is given access to the Purchased Applications after having executed an End-User Consent including a Customer who wishes to use the Purchased Applications for its own needs.
"End-User Consent" means the form that an End-User has to review, understand and execute to purchase the Purchased Applications and before being allowed to access and use the Purchased Applications;
"Fees" means the fees payable to Supplier pursuant to the Agreement;
"Intellectual Property Right(s)" means any right that is or may be granted or recognized under any American, Canadian or foreign legislation regarding patents, copyrights, neighbouring rights, moral rights, trademarks, trade names, services marks, industrial designs, mask work, integrated circuit topography, privacy, publicity, celebrity and personality rights, trade secrets and know-how and any other statutory provision or common or civil law principle regarding intellectual and industrial property, whether registered or unregistered, and including rights in any application for any of the foregoing;
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious codes, files, scripts, agents or programs;
"Party" means Supplier and any person who is a party to the Agreement and, for the purposes of Article 7 but exclusively for these purposes, means also any Customer, any customer of a Customer, any End-User, any Applicant and any Reference Person;
"Permitted Use" means exclusively the use of the Purchased Applications expressly permitted by Supplier pursuant to the Agreement;
"Privacy Policy" means the privacy policy that was adopted by Supplier as it may be modified from time to time by Supplier;
"Purchased Applications" means the services and applications provided by Supplier that are purchased directly from Supplier from time to time by Customer or, if permitted, by a customer of Customer and includes the Additional Purchased Applications unless the context does not permit such inclusion;
"Reference Person" means any person who provides references or comments on an Applicant;
"Reference Person Consent" means the Reference Person consent form that is annexed hereto or to the Agreement and that a Reference Person has to complete and deliver before entering Data;
"Reference Person Data" means all data, information, elements, records and documentation provided by a Reference Person as well as the results of the processing of Reference Person Data;
"Regulatory Requirement(s)" means the compulsory and applicable laws, rule(s) or requirement(s) adopted by any governmental authority, at any level, having jurisdiction over a person, its Data or its activities;
"Schedule(s)" means, if and when applicable, any and all Schedules annexed to the Agreement or to these General Terms and Conditions;
"Statement of Work" means the document describing the Work which Supplier may agree to effect for Customer or a customer of Customer;
"Supplier" means the supplier or the Purchased Applications who is a Party to the Agreement with Customer;
"Supplier Platform" means the platform used by Supplier to deliver or process the Purchased Applications as such platform may be modified by Supplier from time to time, at its discretion;
"Supplier Site" means the site of the servers used for the Supplier Platform and the Purchased Applications, as such site may be moved by Supplier, at its discretion;
"Supplier Web-based Applications" means the Web-based services or applications distributed by Supplier;
"Third-Party Application(s)" means online, Web-based applications and offline software products that are provided by a person other than Supplier and are intended, in whole or in part, to interoperate with any of the Purchased Applications or to be operated or powered by the Supplier Platform;
"User" means any person who, whether authorized or not by Supplier, directly or through a Customer, uses the Supplier Platform or services provided, directly or indirectly, by Supplier including Customer, a customer of Customer, their employees, an Applicant or a Reference Person;
"Work" means the work that may be requested by Customer or a customer of Customer and which Supplier may agree, at its sole discretion, to effect pursuant to a Statement of Work. Dollar figures are all in US dollars (USD), unless otherwise expressly indicated.
Description and characteristics of the services and applications The services and applications offered by Supplier are described either on its website or in the documents that form part of the Agreement between Supplier and Customer. The Purchased Applications are described exclusively in the documents that form part of the Agreement between Supplier and Customer or in any other later document executed by both Parties. The Supplier Web-based Applications are provided exclusively on an "as is and as available" basis and with the functionalities that appear when first used by Customer.
Rights related to the use and access Supplier gives End-User all the rights necessary to access and use the Purchased Applications pursuant to the terms and conditions of the Agreement.
Support of the applications Supplier will provide to Customer the basic support required to allow each Purchased Application to perform as when initially purchased.
Proprietary rights of Customer and limited license to Supplier Customer retains copyrights and any other rights Customer already holds in Customer Content that Customer or its customers submit, post or display through any of the Purchased Applications. By submitting, posting or displaying Customer Content or customers Content, Customer or its customers, as the case may be, give Supplier a worldwide, royalty-free and non-exclusive license to reproduce, modify, translate, publish, publicly perform, publicly display and distribute all Customer Content or customers Content that Customer or its customers submit, post or display on or through any Purchased Application for the sole purpose of enabling Supplier to provide Customer with the Purchased Applications. Customer shall obtain a license similar to that given to Supplier from each of its customers with a right to assign such license to Supplier and shall assign it to Supplier if each such customer does not grant a license to suppliers directly.
Warranties of Supplier to Customer Supplier warrants to Customer that throughout the permitted period of use, the Purchased Applications will perform materially the same as when first used by Customer.
7.1 Except as otherwise permitted in writing by the disclosing Party or otherwise permitted by other provisions of these General Terms and Conditions, the Party that receives any Confidential Information from the other Party (i) will use the same degree of care that it uses to protect the confidentiality of its own confidential information, and (ii) will limit access to this Confidential Information to those persons who need such access for its sole benefit and who have signed confidentiality undertakings similar to this Article.
7.2 Without limiting the above, Supplier will maintain appropriate administrative, physical and technical safeguards to protect confidentiality and integrity of the Data provided to it by a disclosing Party. Supplier will not (a) modify the Data, or (b) disclose and access the Data except (i) as compelled by the Regulatory Requirements or by a Court Order, (ii) to provide the Purchased Applications, (iii) to prevent or address service or technical problems, (iv) at the disclosing Party's request, to keep the Data up to date or in connection with Customer support matters, or (v) as expressly permitted in writing by the disclosing Party. Supplier may, however, provide the Data to its Affiliates or other trusted businesses or persons for the purpose of processing the Data on Supplier's behalf. In such cases, Supplier will require these persons to process the Data based on Supplier's instructions and in compliance with the Agreement and with Supplier's Privacy Policy.
7.3 The receiving Party may disclose Confidential Information of the disclosing Party if it is compelled to do so by Regulatory Requirements or by a Court Order, provided the receiving Party gives the disclosing Party prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the disclosing Party's costs, if the disclosing Party wishes to contest the disclosure.
8.1 Customer will comply, and will cause its customers, employees, subcontractors, agents and any person to whom it may give access to, invite or allow to use the Purchased Applications to comply, with all Regulatory Requirements and Court Orders that may apply to the Purchased Applications or their use including, in particular, with respect to privacy rules governing the gathering, recording and processing of Data.
8.2 Supplier will have no obligation to comply with the Regulatory Requirements, Court Orders or privacy policies that may be applicable to Customer or to the customers of Customer but will respect its own Privacy Policy which appears on its website.
8.3 Customer will hold Supplier harmless against any breach of Regulatory Requirements or Court Orders or privacy policies other than Supplier Privacy Policy that it or its customers have to respect pursuant to this Article and will indemnify Supplier in full for any penalty or other sum of money that Supplier may be called to pay and for any direct damage that Supplier may suffer as a result of such a breach.
9.1 Customer will have the sole responsibility of controlling the access to the Purchased Applications and to the results of any Work and to allow such access only to those persons expressly authorized by Supplier.
9.2 Customer will cause each and all of its customers as well as any other person that it authorizes, invites or allows to access or use the Purchased Applications on the results of the Work to respect in its favor similar terms and conditions as those set forth in these Supplier General Terms and Conditions.
10.1 Customer is responsible for Customer Content and its customers Content whether used or provided by it, by customers, by Applicants, by Reference Persons or by other persons invited, authorized or allowed by it to use or access the Purchased Applications and warrants and represents to Supplier that same can be rightfully and legally used.
10.2 Customer is also solely responsible for the accuracy, quality, integrity and legality of the Data provided by it, its customers, Applicants or Reference Persons or any person other than Supplier allowed by it to use or access the Purchased Applications and of the means by which such Data were acquired.
11.1 Customer will not and will cause the persons that it authorizes, invites or allows to access or use the Purchased Applications not to (i) permit any person to access the Purchased Applications except as permitted by the Agreement, (ii) attempt to decipher, decompile, disassemble or reverse engineer any software which forms part of or supports the Purchased Applications (iii) access any Purchased Application or the Supplier Platform in order to (a) build a competitive application, product or service, or (b) copy any features, functions or graphics of any Purchased Application or of the Supplier Platform.
11.2 Customer will not and will cause the persons that it authorizes, invites or allows to access or use the Purchased Applications not to (i) use the Purchased Applications to store or transmit infringing, libellous or otherwise unlawful or tortuous material, or to store or transmit material in violation of third-party privacy rights, or to store or transmit Malicious Code (ii) interfere with or disrupt the integrity or performance of the Purchased Applications or third-party Data contained in them; (iii) attempt to gain unauthorized access to any application or service offered by Supplier other than the Purchased Applications that it is allowed to use or access; (iv) transmit to Supplier or to any other person any Malicious Code; (v) export or use any Purchased Application in a country where it is prohibited from doing so.
11.3 Customer will not enter, display or process Data or Content and will cause its customers as well as any person that it authorizes, invites or allows to access or use the Purchased Applications not to enter, display or process Data or Content that:
(a) may infringe upon the rights of third parties or Regulatory Requirements or Court Orders; or that
(b) is false, misleading, defamatory, malicious, obscene or pornographic or that may intentionally cause damages to a person.
11.4 Customer authorizes Supplier as well as any supplier of Supplier to identify Customer and its logo as one of its customers in its marketing and advertising activities and initiatives.12.1 Subject to the limited rights expressly granted to Customer, to its customers to Applicants and Reference Persons in the Agreement, Supplier reserves all rights, titles and interest in the Purchased Applications, in the Supplier Platform and in any other application or service provided by it, including all related Intellectual Property Rights.
12.2 No right is given to Customer or to any person to use any of Supplier's trade names, trademarks, service marks, logos, domain names and other distinctive brand features and Customer and the persons that it invites, authorizes or allows to access or use the Purchased Applications are strictly prohibited from using same, unless expressly authorized by Supplier.
12.3 Customer will, and Customer will cause the persons that it invites, authorizes or allows to access or use the Purchased Applications to, refrain from contesting Supplier's Intellectual Property Rights and other Supplier's rights related to the Supplier Platform, the Purchased Applications and any other application and service offered by Supplier, from inducing any other person to do so and from cooperating with any person involved in the contestation of these rights.
13.1 Supplier may, from time to time, offer other applications and services, modify the existing applications and services including the Purchased Applications or improve the functionality of the Purchased Applications. However, the obligations of Supplier as to the functionality of the Purchased Applications are limited with respect to any particular Purchased Application to the functionality that was in force at the time any such Purchased Application was initially purchased by Customer.
13.2 Customer shall be deemed having accepted any improvement or modification made by Supplier to a Purchased Application and will be bound by such improvement or modification if Supplier decides, at its sole discretion, to have Customer have the benefit of this improvement or modification, the whole provided that no such acceptance shall be deemed having been given by Customer (a) if it involves a fee increase, save if Customer does expressly consent to such increase, or (b) if it materially reduces the functionality of the Purchased Application that was in force at the time any such Purchased Application was initially purchased by Customer.
13.3 The costs of adapting any application, service, software or product operated by Supplier, other than a Supplier Web-based Application, through or with the Purchased Applications or the Supplier Platform that may be required as a result of such improvement or modification made by Supplier to a Purchased Application shall be borne exclusively by Customer.
14.1 Supplier may at its sole discretion accept to effect Work for Customer or its customers pursuant to a Statement of Work.
14.2 The Work that may be purchased by Customer or by any of its customers through a Statement of Work shall be governed by these General Terms and Conditions and by the following additional terms and conditions:
Supplier's obligations in relation with the Work described in a Statement of Work, unless otherwise expressly stipulated in the Statement of Work:
shall be limited exclusively to the supply of its available personnel with a view to effect the Work as described in the Statement of Work, the whole without disturbing Supplier's regular activities or that of its own suppliers;
shall be of the nature of an obligation to take reasonable means to perform the Work expressly described in Statement of Work but shall in no way be deemed an obligation of result;
shall be subject to Customer or its customer, as the case may be, providing to Supplier in due time all the necessary information and access that Supplier may reasonably request from Customer or its customer, as the case may be, to supply the Work described in the Statement of Work;
shall be conditional upon Customer warranting to Supplier (1) that it holds all the rights required to allow Supplier to effect the Work described in the Statement of Work; (2) that the software products and other materials in connection with which the Work has to be effected are free from any defect, virus or other characteristic that may render the Work described in the Statement of Work unreasonably difficult or impossible to effect; and
shall not be subject to the respect of a fixed timetable unless expressly mentioned in the Statement of Work but if such a fixed timetable is accepted, the respect of any such timetable shall be conditional upon Customer, or its customer, as the case may be, respecting all its prior obligations in favor of Supplier in a timely manner;
the fees related to Work described in the Statement of Work shall be described in the Statement of Work and shall be above and in addition to the fees for any Purchased Application or Work which is not described in the Statement of Work.
15.1 Customer, if applicable, as well as any customer of Customer, has the responsibility to test, to its satisfaction, the Purchased Applications and the results of any Work performed by Supplier pursuant to a Statement of Work before commencing to use them. Customer and, if applicable, any customer of Customer will be deemed being satisfied with the quality and the functionality of a Purchased Application or the results of the Work after having used same the first time if it continues to use same after having used same the first time.
15.2 Except as otherwise expressly provided in the Agreement, Supplier makes or gives no warranty of any kind, whether express, implied, statutory or otherwise, and specifically disclaims all implied warranties, including any warranties of merchantability or fitness for a particular purpose, to the maximum extent permitted by applicable law.
15.3 Upon written request, Supplier will prepare a monthly Data export file and make it available to Customer. However, Customer and its customers have the exclusive responsibility to keep a copy or back-up of any Data or Content either one of them intends to enter in, display on or process through a Purchased Application and to maintain adequate Content and Data recovery and back-up systems.
15.4 Supplier acknowledges and accepts, and will cause its customers to acknowledge and accept, that the use of any Purchased Application and the results of any Work may be subject to limitations, delays and other constraints and problems in the use of the Internet and electronic communications or to other limitations, such as, for example, limits on disk storage space, the number of calls a User is permitted to make against Supplier application programming interface, and, for those Purchased Applications that enable a User to provide public websites, the number of page views by visitors to those websites.
15.5 Customer acknowledges, and will cause its customers to acknowledge, that:
(a) Supplier processes the Data on its servers located in Canada but may eventually move these servers to another location of its choice; and that
(b) the Data may be processed on a server outside any User's own country.
To the extent required, Customer expressly consents, and will cause its customers to consent, to the use of such servers and to such location and undertakes to hold Supplier harmless against any Regulatory Requirement or Court Order that may restrain Supplier's rights and ability in that regard.
16.1 Any acquisition or use by Customer or any of its customers of Third-Party Applications, products or services, including but not limited to other Third-Party Applications and implementation, customization and other consulting services, and any exchange of Data between Customer or any of its customers and any third-party provider, is solely between Customer or the customer in question and the applicable third-party provider. Supplier does not warrant or support third-party products or services including Customer's products and services, whether or not they are designated by Supplier as "certified" or otherwise.
16.2 If Customer or any of its customers installs or enables Third-Party Applications or its own applications for use with any Purchased Application or the Supplier Platform, Customer acknowledges, and will cause such customer to acknowledge, that Supplier may allow providers of those Third-Party Applications or applications to access Data as required for the interoperation of such Third-Party Applications or applications with the Purchased Applications or the Supplier Platform. Supplier will not be responsible for any disclosure, modification or deletion of Data resulting from any such access by the provider of such Third-Party Application or application.
16.3 The features of the Purchased Applications that interoperate with Adobe services depend on the continuing availability of the Adobe API and program for use with the Purchased Applications. If Adobe Inc. ceases to make the Adobe API or program available on reasonable terms for the Purchased Applications, Supplier may cease providing such features of such Purchased Applications without entitling Supplier to any refund, credit or other compensation.
17.1 Unless otherwise expressly prohibited from so doing by the provider of the Data, Supplier is entitled:
17.1.1 to keep the Data; and
17.1.2 to use and to communicate such Data to any third party, provided, in such case, it has obtained or obtains the consent of the person who has provided such Data.
17.2 Upon written request, Supplier will prepare a Data export file (other than Applicant Data and Reference Person Data), on a monthly basis, and will make it available to Customer.
17.3 Furthermore, upon written request of Customer made within thirty (30) days after termination of the Agreement, but provided all outstanding fees will have been paid to Supplier, Supplier will make available to Customer for download a file of Customer Data (other than Applicant Data and Reference Person Data) or, as the case may be, Customer Data in comma separated value (csv) format along with attachments in their native format. After such thirty (30) days period, Supplier will have no obligation to maintain or provide any Customer Data or customer of Customer's Data, (but may decide to do so) and may thereafter, unless legally prohibited, delete, destroy or render unusable all Customer Data, including its customers' Data in Supplier's possession or under its control.
18.1 Any liability to which Supplier may be bound by law or by contract is expressly excluded save and except as may be otherwise expressly stipulated in these Supplier General Terms and Conditions and save to the extent such exclusion may be prohibited by law.
18.2 In no event and without restricting the foregoing, will Supplier's aggregate liability in connection with the supply of the Purchased Applications or of the results of any Work to Customer, if applicable, or to any customer of Customer or that may result from the use of the Purchased Applications or of the results of any Work by it, its customers, Applicants or Reference Persons or arising of or related to the Agreement, whether contractually or extra-contractually, in tort or under any other theory of liability, and for the total period of the Agreement exceed the lesser of the following amounts
(a) five hundred dollars ($500) per individual claimant;
(b) ten thousand dollars ($10,000) for all claims in the aggregate; and
(c) the amount paid to Supplier by the individual claimant over the two (2) months period immediately preceding the alleged incidents at the origin of the claim made by such claimant.
18.3 Supplier assumes no liability in favor of any person other than Customer. Any right that any customer of Customer, an Applicant or a Reference Person may have in connection with the Purchased Applications or the results of the Work or the use of the Purchased Applications or the results of the Work or arising out of any contract between Customer and any of its customers or between an Applicant or a Reference Person and any of its customers shall be subject and subordinated to the limitations of liability described in this Article.
18.4 In no event will Supplier have any liability to Customer, any of its customers or any other person using any of its applications, services or the results of any Work including the Purchased Applications or the Supplier Platform for any lost profits or revenues or for any indirect, special, incidental, consequential, exemplary or punitive damages however caused, whether contractually or extra-contractually, in tort or under any other theory of liability, and whether or not Supplier has been advised of the possibility of such damages. The foregoing disclaimer shall not apply to the extent prohibited by applicable law.
18.5 Customer shall hold Supplier harmless against any claim, situation or Court Order, out of Supplier's reasonable control, that would result in Supplier not being able to avail itself of the limitations of liability described in this Article.
19.1 The Agreement commences on the date indicated in the Agreement or, in the absence of such indication, on the first (1st) day of use of any Purchased Application and will remain in force with respect to any such Purchased Application, until such time as indicated in the Agreement or, in the absence of such indication, until the end of the thirtieth (30th) day following the receipt of a written notice of termination sent by either Party to the other. As to any Work, the Agreement will be deemed in force from the date of execution of the Statement of Work until the delivery date of the results of the Work.
19.2 Notwithstanding any period of time indicated in the Agreement, the Agreement will terminate:
19.2.1 on the sixteenth (16th) day following a notice of default of complying with the Agreement sent by one Party to the other if the default described in the notice is not remedied within that delay;
19.2.2 immediately if either Party becomes insolvent, files an application to obtain the protection of the courts against its creditors, enters into receivership, proceeds to a restructuring of its debts involving extensions of payment, delays or a reduction of the instalments of the total sum of money payable to its creditors, admits an inability to pay its debts in a timely manner, makes a general assignment for the benefit of its creditors, or undertakes any action in a jurisdiction outside of the United States or Canada that is substantially similar to the foregoing;
19.2.3 immediately, at the option of Supplier, if the compliance by Supplier with any applicable Regulatory Requirement or Court Order would likely require modifications to a Purchased Application or would likely result in an increase of the obligations of Supplier in connection with the supply of this Purchased Application but exclusively in connection with the affected Purchased Application and User.
19.3 Notwithstanding the expiry or termination of the Agreement, the provisions of the Agreement will continue to govern the interpretation and enforceability of the rights and obligations of each person bound and governed by them, the whole to the extent applicable whether or not such survival is expressly stipulated. Without limiting the foregoing, any prohibition to, use or use for certain purposes or in a certain manner or to access the Purchased Applications or to disclose Confidential Information will survive the expiry or termination of the Agreement. For greater clarity, the obligations of Supplier to supply the Purchased Applications will not survive the expiry or termination of the Agreement.
19.4 Upon the expiry or termination of the Agreement:
(a) Customer and all its customers will cease using the Purchased Applications and prevent the Applicants, Reference Persons or other persons to whom either of them may have given any right to use these Purchased Applications from using them;
(b) Customer will pay in full all outstanding and unpaid fees owed to Supplier;
(c) Supplier will allow Customer to retrieve or copy its Confidential Information as provided in these General Terms and Conditions.
20.1 Priority of Agreement. Whenever Customer enters into a contract with a customer with respect to the Purchased Applications, the Agreement between Supplier and Customer has priority over such contract and any right granted to a customer of Customer hereunder is subordinated to such Agreement.
20.2 Notices. All notices that are required or permitted to be given in connection with the Agreement must be in writing and will be deemed to have been properly given if and when delivered personally or sent by e-mail, addressed as follows:
(a) if to Customer:
at the civic address or at the e-mail address and to the persons indicated in a written notice sent to Supplier in accordance with this section or in the absence of such indication, to the head office address of Customer or to its e-mail address to the attention of its Chief Financial Officer as same appear on Google;
(b) if to Supplier as follows:
at the following civic address:
Henry Schein, Inc. 400 Blue Hill Drive Westwood, MA 02090 Att. Legal Department20.3 Assignment. A Party's rights and obligations set forth in the Agreement may not be assigned or transferred by that Party to another person or entity without the prior consent of the other Party, save and except as provided herein and save except that either Party may assign such rights and obligations to a purchaser of all or substantially all the assets of such Party or to any subsidiary or affiliate of such Party upon notice to the other Party provided the assignor, if the assignor is Customer, Customer remains jointly and severally (or solidarily in civil law jurisdictions) responsible with the assignee for the performance of the obligations described herein in favor of Supplier. Notwithstanding anything to the contrary,
(a) Supplier is entitled to subcontract the whole or part of its obligations pursuant to the Agreement provided it remains responsible in favor of Customer for the performance of such subcontracted obligations; and
(b) Customer is entitled to assign its rights to Supplier or a person designated by it against any of its customers or any other person whom it has authorized, invited or allowed to use or access the Purchased Applications.
20.4 Successors. The Agreement inures to the benefit of and is binding upon the persons that are bound or governed by them, their permitted successors and their permitted assigns.
20.5 Entire Agreement. The Agreement constitutes the entire agreement between the persons bound or governed by it with respect to its subject matter and there are no representations, understandings or agreements relative hereto that are not fully expressed therein. No amendment, change, waiver or discharge hereof or thereof will be valid unless in writing and signed by an authorized representative of the person against whom such amendment, change, waiver or discharge is sought to be enforced. In the case of Supplier, only the President and Chief Executive Officer and the Chief Financial Officer are authorized representatives of Supplier for the purposes of any such amendment, change, waiver or discharge.
20.6 Independent contractor. Supplier, in performing its obligations under the Agreement, is acting only as an independent contractor and its rights and responsibilities as well as those of the other persons bound or governed by them are to be determined accordingly.
20.7 Waiver and severability. A waiver by or failure of a Party to exercise any right in any instance will not be deemed a waiver thereof in any subsequent instance. If for any reason a court or arbitrator of competent jurisdiction finds any provision of the Agreement or portion thereof, to be unenforceable, that provision will be enforced to the maximum extent permissible so as to effect the intent and the remainder of the Agreement will continue in full force and effect.
20.8 Headings. The article headings used in these General Terms and Conditions are for reference and convenience only and will not enter into their interpretation.
20.9 Applicable laws. The Agreement is to be construed, interpreted and governed:
(a) by the laws of the Province of Quebec and the laws of Canada applicable in such Province if Customer is a resident of Canada or has a place of business in Canada, even though Customer may also be a resident of another country; or
(b) by the laws of the State of New York, if Customer is a resident of the United States of America or of any other country other than Canada.
20.10 Disputes. If a dispute arises of or relates to the Agreement and if the dispute cannot be settled through negotiations, attempts will be made in good faith to settle the dispute by mediation in accordance with the International Mediation Rules of the International Centre for Dispute Resolution, the international division of the American Arbitration Association. Should the mediation fail to settle the dispute, the dispute will be determined by arbitration administered by the International Centre for Dispute Resolution in accordance with its International Arbitration Rules, it being specified that the number of arbitrators will be three (3), that the place of arbitration will be the city where Supplier's head office is located and that the language of arbitration shall be English.