Subscription Agreement
This Subscription Agreement ("Agreement") between BorderPass Corp. ("BorderPass") and the undersigned Customer (the "Customer") is effective as of the execution date set forth above. For good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties agree as follows:
- Definitions
"Fees" means the fees described in the Subscription Form and the SERVICES, FEES & PAYMENT TERMS.
"FIPPA" means Ontario's Freedom of Information and Protection of Privacy Act in effect from time to time.
"Funds" are Canadian (CDN or CA) dollars
"Customer Data" means all electronic data or information submitted by Customer and owned by Customer.
"Malicious Code" means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Service" means BorderPass' immigration management and visa application subscription services as detailed in SERVICES, FEES & PAYMENT TERMS above.
"Terms of Use" means the Terms of Service, Privacy Policy, and Security Policy, Retainer Agreement in each case as amended from time to time.
"DLI" means an educational institution that has been approved by a provincial or territorial government to host international students. These institutions have met specific criteria and requirements set by Immigration, Refugees, and Citizenship Canada (IRCC).
"Applicant" means an individual who has expressed interest in joining or enrolling in a program, course, or institution by submitting the necessary documentation, forms, or applications required for consideration by the admissions or enrollment department. This person is in the process of seeking admission or acceptance into a DLI.
"User" means a student of the Customer whose subscription to use the Service has been purchased by the Customer and who is an authorized user of the Service.
"Academic Year" means the period of time during which a college offers its academic programs and courses, typically starting in the Fall term. The academic year is typically divided into three terms: Fall, Winter, and Spring. The Fall term usually begins in September and ends in December, the Winter term usually begins in January and ends in April, and the Spring term runs from May to August.
- Term, Termination, and Payment Terms
2.1 Provision of Service
BorderPass shall provide the Service to Users during the Term. Other than as expressly set forth in this Agreement, BorderPass shall make the Service available to Users in accordance with, and subject to, the Terms of Use.
2.2 Term of Agreement
This Agreement shall continue for a period as set out in the Subscription Form (the "Initial Term"). If the Initial Term is not specified in the Subscription Form, the Initial Term shall be one year. Upon the expiration of the Initial Term, this Agreement shall automatically renew for two (2) additional one-year periods (each, a "Renewal Term"), unless either party provides written notice of non-renewal at least sixty (60) days prior to the expiration of the then-current term. The Initial Term and any Renewal Term(s) shall collectively be referred to as the "Term" of this Agreement BorderPass to provide alerts to the Customer on or about ninety (90) days prior to the expiry of a prior term. Fees for any Renewal Term shall be subject to a 10% increase for the same Services.
2.3 Termination of Agreement
Customer may terminate this Agreement In the event of any uncured breach by BorderPass of the terms of this Agreement, by providing at least thirty (30) days written notice including reasonably required details of the breach, in which case BorderPass shall forthwith refund to Customer any prepaid fees that have not been consumed by Users of the Service. Customer may also terminate in the event of voluntary or involuntary proceedings related to insolvency or bankruptcy or other proceedings dealing with creditors' collective interests.
2.4 Invoice Payment
Due within thirty (30) days of receipt.
2.5 Late-Payment Clause
Any policies for which payment is not received within 30 days of invoice receipt shall be considered overdue and may be subject to a 2% interest charge per month.
2.6 Currency
All invoice amounts are paid in Canadian dollars ("CAD"). In the event that a transaction occurs in a foreign currency, the CAD equivalent shall be calculated based on the exchange rate received by BorderPass at the time of receipt of BorderPass's fee for the applicable period.
- BorderPass Responsibilities
3.1 BorderPass shall:
in addition to its confidentiality obligations hereunder, not use or modify Customer Data without the Customer's consent (except for the purposes of performing the Service or exercising its rights under this Agreement) or disclose the Customer Data to anyone other than Customer;
maintain the security and integrity of the Service and the Customer Data;
comply with the applicable laws of Canada in providing the Services;
use commercially reasonable efforts to make the Service available twenty-four (24) hours a day, seven (7) days a week, except for: (a) planned downtime; or (b) any unavailability caused by circumstances beyond BorderPass' reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within BorderPass' possession or reasonable control, and denial of service attacks. Audited and renewed annually, BorderPass maintains a Business Continuity and Disaster Recovery Plan to prepare BorderPass in the event of extended service outages caused by factors beyond our control, and to restore services to the widest extent possible in a minimum time frame.
provide Customer with aggregate data reports and analytics on key metrics and information such as permit applications filed, permit applications approved, pre-assessment risk levels, and diversity metrics (such as passport country, marital status, age & gender).
3.2 Data Location and Destruction
All storage and processing of Customer Data by Company shall be solely on servers located in Canada, using industry-standard encryption methods both in transit and at rest.
3.3 Security Breach Procedures
In the event of a breach of BorderPass' security measures affecting Customer Data, BorderPass will notify Customer of such breach within 24 hours after discovery by BorderPass.
3.4 Accessibility
BorderPass to design its application in a manner that satisfies the requirements of the Accessibility for Ontarians with Disabilities Act (AODA). BorderPass products and services are currently designed based on the internationally recognized Web Content Accessibility Guidelines (WCAG) 2.1 Level AA.
3.5 SOC 2 Type II Audit & Compliance
BorderPass is SOC 2 Type II compliant in accordance with American Institute of Certified Public Accountants (AICPA) standards for SOC for Service Organizations also known as SSAE 18. BorderPass was audited by Prescient Assurance, a leader in security and compliance attestation for B2B, SAAS companies worldwide, serving as third-party industry validation that BorderPass provides enterprise-level security for clients' data secured in BorderPass.
3.6 Service Level Expectations
BorderPass communicates service level expectations with Users, and BorderPass provides Users with a feedback/complaints process as part of a commitment to continuous improvement and responsiveness to student needs.
- Customer Responsibilities
4.1.1 Customer Data
As between BorderPass and Customer, Customer exclusively owns all rights, title and interest in and to all Customer Data. BorderPass shall not access Customer Data, except to: (x) respond to service or technical problems or at Customer's request, (y) as necessary for the operation of the Service or for billing purposes, or (z) collect data on the Customer's usage of the Service for benchmarking and best practices.
4.1.2 User Data
All data collected through the Service from Customer's Users ("User Data") shall be used, stored and processed in accordance with the BorderPass privacy policy as set out at https://www.borderpass.ai/privacy-policy.
4.2 Use Guidelines
4.2.1. Customer shall not:
license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, time share or otherwise commercially exploit or make the Service available to any party except under the terms of this Agreement;
use the Service to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;
knowingly use the Service to send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material that is harmful to children or violates third-party privacy or publicity rights;
knowingly use the Service to send or store Malicious Code;
interfere with or disrupt the integrity or performance of the Service or the data contained therein;
attempt to gain unauthorized access to the Service or its related systems or networks.
5. Terms of Use
As a condition of creating an account and use of the Service, Users must agree to the Terms of Use. BorderPass will provide notice to the Customer and User if there are any material changes to the Terms of Use.
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Audit Rights
BorderPass shall have the right to use the capabilities of the Service to confirm the number of Users using the Service and Customer's compliance with this Agreement.
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Suspension of Service
If Customer's account is thirty (30) days or more overdue (except with respect to charges then under reasonable and good faith dispute), in addition to any of its other rights or remedies, BorderPass reserves the right to suspend the Service provided to Customer and its Users, without liability to Customer, until such amounts are paid in full. BorderPass to give notice prior to exercising the right of suspension of at least ten (10) business days.
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Proprietary Rights
8.1. Reservation of Rights
Subject to the limited rights expressly granted hereunder, BorderPass reserves all rights, title and interest in and to the Service, including all related intellectual property rights. No rights are granted to Customer hereunder other than as expressly set forth herein.
8.2. Restrictions
8.2.1. Customer shall not (and shall not allow any third party to):
modify, translate, reverse engineer, decompile, disassemble, or create derivative works based on the Service except to the extent that enforcement is prohibited by applicable law notwithstanding a contractual provision to the contrary;
circumvent any user limits or other timing or use restrictions that are built into the Service;
remove any proprietary notices, labels, or marks from the Service or The Terms of Use;
frame or mirror any content forming part of the Service;
access the Service in order to (a) build a competitive product or service, or (b) copy any ideas, features, functions or graphics of the Service; or
use all or any portion of the Service for hazardous purposes requiring fail-safe performance, such as aircraft navigation, air traffic control, or weapons systems, in which the failure of the Service could lead directly to death, personal injury, or severe physical or environmental damage.
9. Suggestions
BorderPass shall have a royalty-free, worldwide, transferable, sublicensable, irrevocable, perpetual, unrestricted license to use or incorporate into the Service any suggestions, enhancement requests, recommendations or other feedback provided by Customer or its Users relating to the operation of the Service ("Suggestions").
- Confidentiality
10.1. Definition of Confidential Information
As used herein, "Confidential Information" means all confidential and proprietary information of a party (the "Disclosing Party") disclosed to the other party (the "Receiving Party"), whether orally or in writing, that is designated as confidential or that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure, including the terms and conditions of this Agreement, the Customer Data, the Service, business and marketing plans, technology and technical information, product designs, and business processes. Confidential Information shall not include any information that:
is or becomes generally known to the public without breach of any obligation owed to the Disclosing Party;
was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party;
was independently developed by the Receiving Party without breach of any obligation owed to the Disclosing Party;
is received from a third party without breach of any obligation owed to the Disclosing Party or
is required to be disclosed by applicable law or legal proceedings.
10.2. Confidentiality
The Receiving Party shall not disclose or use any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement, except with the Disclosing Party's prior written permission.
10.3. Data Security
BorderPass shall implement and maintain appropriate and reasonable organizational and technical security measures in line with recognized standard cyber security frameworks (including those with respect to personnel, facilities, hardware, software, software development, data storage, networking, access control, monitoring and logging, vulnerability management, and breach detection and response) to protect against unauthorized or accidental access, loss, modification, disclosure, or destruction of Customer Data.
10.4 Protection
Each party agrees to protect the confidentiality of the Confidential Information of the other party in the same manner that it protects the confidentiality of its own proprietary and confidential information of like kind (but in no event using less than reasonable care).
10.5. Compelled Disclosure
If the Receiving Party is compelled by law to disclose Confidential Information of the Disclosing Party, it shall provide the Disclosing Party with prior notice of such compelled disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the disclosure.
10.6. Remedies
If the Receiving Party discloses or uses (or threatens to disclose or use) any Confidential Information of the Disclosing Party in breach of confidentiality protections hereunder, the Disclosing Party shall have the right, in addition to any other remedies available to it, to seek injunctive relief to enjoin such acts, it being specifically acknowledged by the parties that any other available remedies may be inadequate.
10.7. Publicity
Neither party may issue press releases relating to this Agreement without the other party's prior written consent. Each party may include the name and logo of the other party in lists of customers or vendors in accordance with the other party's standard guidelines.
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Insurance
BorderPass shall maintain at its own cost Cyber and Technology Professional Liability Insurance and Management Liability (D&O) Insurance with a limit of liability not less than two million ($2,000,000) per claim. BorderPass shall maintain appropriate levels of insurance to cover the requirements and exposures contained in this agreement. BorderPass shall provide the Institution with proof of the insurance required by the Agreement in the form of valid certificates of insurance that reference the Agreement and confirm the required coverage. BorderPass shall provide Institution with renewal replacements on or before the expiry of any such insurance. BorderPass shall ensure contractually that each of its subcontractors obtains all the necessary and appropriate insurance that a prudent person in the business of the subcontractor would maintain or BorderPass's insurance shall apply to the performance of service by an applicable subcontractor under BorderPass's direction pursuant to this Agreement.
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Warranties & Disclaimers
12.1. Warranties
Each party represents and warrants that it has the legal power to enter into this Agreement. BorderPass represents and warrants that the Service will not contain or transmit to Customer any Malicious Code (except for any Malicious Code contained in User or Customer-uploaded materials or otherwise originating from Customer or a User). BorderPass represents and warrants that the entering into of the Master Subscription Agreement and the performance of the Service does not conflict with, or result in the breach of any agreement to which BorderPass is a party; nor infringe upon the intellectual property rights of third parties. BorderPass represents and warrants that it has, and will maintain throughout the Initial Term and any Renewal Terms, the required skills, qualifications, expertise, experience and resources to perform the Service; and that the Service shall be performed in a competent and professional manner and in accordance with all applicable laws, rules or regulations as the same may apply to the Service.
12.2. Disclaimer
EXCEPT AS EXPRESSLY PROVIDED HEREIN, NEITHER PARTY MAKES ANY REPRESENTATIONS AND PROVIDES ANY WARRANTIES OR CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS, INCLUDING ANY REPRESENTATIONS, WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, TITLE, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
- Indemnification
13.1. Indemnification by BorderPass
Subject to this Agreement, BorderPass shall indemnify Customer against any damage (including reasonable attorneys' fees) awarded to a third party against Customer by a court of competent jurisdiction in any proceedings made or brought against Customer by a third party alleging that the use of the Service as contemplated hereunder infringes, on its own and not in combination with other services, upon the intellectual property rights of a third party ("IP Claims"); subject to the condition that Customer (a) promptly gives written notice of each IP Claim to BorderPass; (b) gives BorderPass sole control of the defense and settlement of each IP Claim (provided that BorderPass may not settle or defend any IP Claim unless it unconditionally releases Customer of all liability); and (c) provides to BorderPass, at BorderPass' cost, all reasonable assistance in respect to each IP Claim.
13.2 Mutual Indemnification
Subject to Section 14 below, each party shall indemnify and hold harmless the other party, its officers, directors, employees, agents, affiliates, successors and assigns from and against any and all claims, damages, liabilities, costs and expenses (including reasonable attorneys' fees) arising out of or in connection with any breach of this Agreement by the indemnifying party or its personnel. This indemnification shall not apply to any claims, damages, liabilities, costs and expenses arising out of or resulting from the gross negligence or willful misconduct of the indemnified party or its personnel. Notwithstanding the foregoing, in no event shall either party be liable for any indirect, incidental, special, punitive or consequential damages, including without limitation, loss of profits, loss of revenue, loss of use or interruption of business, even if advised of the possibility of such damages.
13.3. Mitigation
If (a) BorderPass becomes aware of an actual or potential IP Claim, or (b) Customer provides BorderPass with notice of an actual or potential IP Claim, BorderPass may (or in the case of an injunction against Customer, shall), at BorderPass' sole option and determination: (I) procure for Customer the right to continue to use the Service; or (II) replace or modify the Service with equivalent or better functionality so that Customer's use is no longer infringing; or (III) if (I) or (II) are not commercially reasonable, terminate provision of the Service and refund to Customer any prepaid Service fees for any periods after the termination of the Service, less any outstanding moneys owed by Customer to BorderPass.
13.4. Exclusions
The obligations in Sections 13.1 and 13.2 do not extend to (1) any IP Claim based upon infringement or alleged infringement of any patent, trademark, copyright or other intellectual property right by the combination of the Service furnished by BorderPass with other products, software or services not provided by BorderPass; (2) any IP Claim related to any Customer Data, or (3) any IP Claim related to any use or exercise of any other right in respect to the Service outside the scope of the rights granted in this Agreement.
- Limitation of Liability
14.1. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS ACTUALLY PAID BY AND DUE FROM CUSTOMER HEREUNDER IN THE SIX MONTHS PRECEDING THE INCIDENT GIVING RISE TO LIABILITY.
14.2. Exclusion of Consequential and Related Damages
IN NO EVENT SHALL EITHER PARTY HAVE ANY LIABILITY TO THE OTHER PARTY FOR ANY LOST PROFITS OR FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOST SAVINGS OR OTHER SIMILAR PECUNIARY LOSS) HOWEVER CAUSED AND, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR UNDER ANY OTHER THEORY OF LIABILITY, WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
14.3. Certain Damages Not Excluded
NOTWITHSTANDING THE FOREGOING, NO LIMITATION OF EITHER PARTY'S LIABILITY SET FORTH IN THIS AGREEMENT SHALL APPLY TO (I) DAMAGES ARISING FROM A PARTY'S BREACH OF ITS CONFIDENTIALITY OBLIGATIONS, (II) DAMAGES ARISING FROM ANY INFRINGEMENT AND/OR MISAPPROPRIATION OF A PARTY'S INTELLECTUAL PROPERTY RIGHTS; OR (III) ANY CLAIMS FOR NON-PAYMENT.
- General Provisions
15.1 Relationship of the Parties
The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
15.2. Notices
All notices under this Agreement shall be in writing and shall be deemed to have been given in by registered mail to the following attention and address or by email provided, however, that notice of any e-mail communication shall be deemed to be received 48 hours after an email is sent.
To BorderPass:
Email: sally@borderpass.ai, CC: jonathan@borderpass.ai, finance@borderpass.ai
Address: 33 Bloor St. E, 5th Floor, Toronto, ON M4W 3H1, Canada
15.3. Waiver and Cumulative Remedies
No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
15.4. Severability
If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
15.5. Assignment
Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, each party may assign this Agreement in its entirety, without consent of the other party, in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its stock or assets. Any attempt by a party to assign its rights or obligations under this Agreement in breach of this section shall be void and of no effect. Subject to the foregoing, this Agreement shall bind and insure to the benefit of the parties, their respective successors and permitted assigns.
15.6 Dispute Resolution
Utilize the persons identified under 15.2 to form an oversight committee that will meet monthly (initially) or on request of a party, to address any operational concerns that a party may have, and to hear and attempt to resolve any disputes. If the oversight committee is unable to resolve (by mutual agreement on behalf of the respective parties) any dispute, the matter shall be referred to the respective Presidents of each party, and failing agreement at that level, referred to arbitration under the relevant statutory authority (of Ontario). In the event of a dispute arising out of or in connection with the terms of this Agreement between Customer and BorderPass, then Customer agrees to attempt to settle the dispute by engaging in good faith negotiations with BorderPass in a process of mediation before commencing arbitration or litigation. The matter shall be referred to the respective Presidents of each party, and failing agreement at that level they agree to submit those issues in dispute to binding arbitration pursuant to the Commercial Arbitration Act and Commercial Arbitration Code annexed thereto (R.S.C. 1985, ch. 17 (2nd Supp.) as am.); and the parties agree to the specific Terms of Arbitration to this Contract. The parties confirm that it is their wish that this Agreement as well as all other documents relating to this Agreement, including notices, be drawn up in English only.
15.7. Governing Law
If the Customer resides in Canada and uses the System in Canada, this Agreement is to be construed under the laws of the Province of Ontario.
15.8. Force Majeure
Neither party shall be responsible for its failure to perform to the extent due to unforeseen circumstances or causes beyond its control, including but not limited to acts of God, wars, terrorism, riots, pandemics, embargoes, acts of civil or military authorities, fires, floods, accidents, or strikes, labor problems (other than those involving the employees of the affected party), computer, telecommunications, Internet service provider or hosting facility failures or delays involving hardware, software or power systems not within a party's possession or reasonable control, provided that such party gives the other party prompt written notice of the failure to perform and the reason therefore and uses its reasonable efforts to limit the resulting delay in its performance, or in the context of this agreement directives from the Ministry that impose limits on international enrolment which may impact the Fees payable pursuant to the Agreement. Audited and renewed annually, BorderPass maintains a Business Continuity and Disaster Recovery Plan to prepare BorderPass in the event of extended service outages caused by factors beyond our control, and to restore services to the widest extent possible in a minimum time frame.
15.9. Non-disclosure of terms of this Agreement
BorderPass and the Customer agree that the terms of this agreement are proprietary to each of them, shall be maintained in confidence, and there shall be no disclosure of the terms of this agreement to third parties. If either party is required by application of law to make disclosure, it shall immediately provide notice to the other party of such requirement.
15.10 Non-publication or announcements
BorderPass and the Customer agree that there shall be no public announcements or other communications related to this agreement unless the parties mutually agree in advance on the content thereof. In addition, if either party is required to submit information related to this agreement to a government agency (Federal or Provincial) it shall advise the other party, and the parties shall cooperate and coordinate with respect to any such submission.
15.11 User Consent on Immigration Events
BorderPass will request consent from User to notify the Customer of specific immigration events (such as securing employment or gaining permanent residence) for the purpose of the Customer celebrating and acknowledging such events.
15.12. Entire Agreement
This Agreement, including all schedules, exhibits and addenda hereto, and the Terms of Use constitute(s) the entire agreement between the parties, and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and signed by the party against whom the modification, amendment or waiver is to be asserted. To the extent of any conflict or inconsistency between the provisions in the body of this Agreement and the Terms of Use, the terms of this Agreement shall prevail.
15.13. Counterparts
This Agreement may be executed by facsimile and in counterparts, which taken together shall form one legal instrument.
