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Fasken Edge Terms of Use

Last revised: May 13, 2020

1. Terms of Use

a. Welcome to Fasken Edge! Fasken Edge is a collaborative platform operated by Fasken Martineau DuMoulin LLP.

b. By using Fasken Edge, you agree to be bound by the following terms (the “Terms of Use”). If you are using Fasken Edge as an employee or agent of or otherwise on behalf of an organization (the “Organization”), then by using Fasken Edge you agree that the Organization is also bound by these Terms of Use and you confirm that you have the authority to legally bind the Organization to these Terms of Use. In these Terms of Use, “we”, “us” or “Fasken” mean Fasken Martineau DuMoulin LLP.

i. As a general principle, Fasken procures technology from reputable licensors and third parties.  Fasken cannot be responsible for any service outage or security breach pertaining to technology provided by those licensors and third parties, as set out in clause 11 below.

ii. Fasken Edge is built on (i) core technology called Collaborate and Content Manager (formerly called Publisher), licensed from HighQ Solutions Limited (part of Thomson Reuters) (“HighQ”) and (ii) integrated third party services (together with HighQ, “Fasken’s Licensors”).

c. On top of the core HighQ technology and third party integrations, we have added Content, Templates, Decision Tools, innovation services and a professional 24/7 support system.

d. These Terms of Use are current as of the “last revised” date which appears at the top of this page. We may modify these Terms of Use from time to time by adding, deleting, or varying their content. We will provide you with notice of the proposed amendment by posting an amended version of these Terms of Use with a new version number, and a pop-up window directing you to the new version. We will include a link to the previous version of the terms beneath the new version number. The amendments will take effect 30 days after the date on which the amended version is posted. Prior to that date, the previous version of the Terms of Use will continue to apply.

e. If you disagree with any amendments, you may terminate these Terms of Use by ceasing to use Fasken Edge at any time within the 30-day notice period. If the amendment increases your obligations under these Terms of Use, or decreases our obligations, then you can also cancel your subscription in the 30 days after the amendments take effect. There will be no cost or penalty for doing so. If you do not cease using Fasken Edge during that time, then, by your continued use, you are considered to have accepted the proposed amendments. Additionally, if you begin using Fasken Edge again, you are considered to have accepted the amendments then in effect.

2. Limited Licence

a. Access to Fasken Edge is granted only to specific individuals (each an “Authorized User”) to assist in the sharing and communication of information and documents (the “Authorized Purpose”). If you are not an Authorized User, then your use of Fasken Edge is strictly prohibited. You acknowledge that: you are responsible for ensuring that all Authorized Users are aware of these Terms of Use and that they comply with them.

b. If you are an Authorized User, then Fasken grants to you a limited license: (1) to access Fasken Edge; (2) to display on your computer, edit, download and print the content that is made available to you on Fasken Edge (collectively, the “Content”); and (3) to use the other features that are available to you on Fasken Edge, but in each case only for the Authorized Purpose and subject to these Terms of Use.

c. Use of the Content by you or the Organization may be subject to confidentiality agreements, non-disclosure agreements, or other agreements that you or the Organization may have entered into with Fasken, the owners of the Content, or other third parties. You agree to comply with all such agreements.

d. Unless you or the Organization have obtained prior written approval from the owner of the Content and any applicable third parties holding or controlling such rights: (1) neither you nor the Organization will disclose any Content to any third party; (2) neither you nor the Organization will make any commercial or other use of any Content; (3) neither you nor the Organization will modify or make any derivative works of any Content; and (4) if any of the Content includes digital rights management controls or similar technology, or is a program or similar technology, neither you nor the Organization will disable or attempt to disable such controls, or reverse compile, reverse engineer or disassemble, duplicate, modify or distribute such Content. Neither you nor the Organization will: (1) resell or make any commercial use of Fasken Edge; (2) attempt to reverse compile, reverse engineer or disassemble, duplicate, modify or distribute any technology element of Fasken Edge; or (3) use or attempt to use Fasken Edge for any illegal or improper purpose.

e. Except for the limited license provided above, neither you nor the Organization are granted any right or license by implication, estoppel, or otherwise in or under any intellectual property right or other right held by Fasken or any third party. No other use is permitted, and all other rights are reserved by Fasken, its service providers, and the owners of the Content.

3. Content You Upload to Fasken Edge

a. If any Content is uploaded to Fasken Edge by or on behalf of you or the Organization (“Client Content”), then: (1) you and the Organization hereby grant to Fasken and its service providers a limited license to store and use the uploaded Client Content in Fasken Edge, and to disclose the uploaded Client Content to others to the extent reasonably required for the Authorized Purpose; (2) you and the Organization represent and warrant to Fasken, and agree with Fasken that: (a) you and the Organization have all rights necessary to upload the Client Content and to grant to Fasken and its service providers the license referred to above; (b) the uploaded Client Content does not violate the rights of any third party, and uploading the Client Content does not breach any agreement with any third party; (c) the uploaded Client Content is not defamatory, obscene or illegal, and does not contravene any applicable laws; and (d) if the uploaded Client Content contains any personal information or personal data, you have all consents necessary at law to grant Fasken and its service providers the license referred to above, and to allow Fasken to store and process such personal information as described in these Terms of Use; and (3) if any uploaded Client Content is subject to the export control restrictions or requirements of any country, you will notify us and you or the Organization will be solely responsible for complying with all applicable export control restrictions and requirements.

4. Additional Representations

a. You and the Organization hereby represent and warrant to Fasken, and agree with Fasken that: (1) you and the Organization have all rights necessary to use Fasken Edge; and (2) when using Fasken Edge, you will not introduce any software, virus or other material that might interfere with the operation of Fasken Edge or that might affect any Content.

5. Your Acknowledgements

a. You acknowledge that: (1) Content may be transferred to, stored or processed in or accessed from locations other than your country, and may be subject to (i) applicable laws in the jurisdiction in which it is stored or from which it is accessed, and (ii) disclosure to the governments, courts or law enforcement or regulatory agencies of such other jurisdiction, pursuant to the laws of such jurisdiction; (2) access to Fasken Edge may be suspended from time to time for scheduled or emergency maintenance, or if there are actual or threatened security issues; and (3) Fasken may change the features of Fasken Edge at any time, with or without notice, and that such changes may alter and/or reduce functionality of Fasken Edge.

6. Content May be Privileged

a. Certain communications between lawyers and their clients have a privileged status. This privileged status might prevent disclosure of those communications, without the client’s consent, to government authorities or in legal proceedings and extra-judicial enquiries where compulsory disclosure might otherwise be required. If you or the Organization are a client of ours, in order to attempt to preserve the privileged status of communications with us through Fasken Edge, we recommend that you and the Organization: (1) show information obtained through Fasken Edge only to those persons within the Organization who need to see that information; (2) keep any copies of such information in a safe place and ensure that unauthorized persons are not able to obtain access to them; and (3) do not give copies of such information to persons outside the Organization. The foregoing does not constitute legal advice provided by us and we do not have a lawyer-client relationship with you, unless specifically and separately agreed upon through a legal retainer agreement executed by us and you. If you or the Organization are a client of ours please contact us if you would like more information about communications that have a privileged status.

7. User IDs and Passwords

a. You are responsible for maintaining the confidentiality of the user ID and password provided to you by Fasken. You are not permitted to share your user ID and password with any other individual. You agree to notify Fasken immediately of any unauthorized use of your user ID and password, and if you lose or misplace your user ID and password. Fasken will not be liable for any activities undertaken by anyone using your user ID. Fasken reserves the right, in its sole discretion, to change or disable your user ID where Fasken suspects that there has been an attempted or actual security breach or to ensure the security of Fasken Edge.

8. Privacy Policy

a. Fasken believes strongly in protecting user privacy. Information on how we collect, use, and disclose personal information is available in our Privacy Policy.

9. Templates

a. Fasken may make available to you template documents on or through Fasken Edge, including any documents created using any document generator we make available on Fasken Edge (each, a “Template”), and all Templates constitute Fasken-owned Content.

b. You must use the Templates solely for your lawful internal business purposes, including for documenting transactions between you and third parties.

c. You may view, copy, modify or adapt a Template, and make Templates  available to third parties  subject to your compliance with these Terms of Use.

d. You must remove all proprietary notices and all references to us if you modify the Templates.

e. You must not (1) sell, sublicense, or otherwise deal in or commercialise the Templates (including charging any person to use the Templates or using the Templates to attract or retain website or application visitors or traffic), except as expressly permitted by these Terms of Use, or (2) provide any Templates to any person to do any of the things prohibited by these Terms of Use.

f. The Templates are provided for guidance purposes only and do not constitute legal advice. The Templates:

i. must not be used for non-business purposes (e.g. any use by consumers as counterparties or otherwise is prohibited); and

ii. are not intended to replace the need for professional advice. In most cases, a Template will need to be modified to address your specific circumstances. We recommend you seek the help of a qualified Fasken lawyer if you wish to use any Template.

g. By making the Templates available to you we are not providing you with legal services (or other regulated services) and we do not have a lawyer-client relationship with you, unless specifically and separately agreed upon through a legal retainer agreement executed by us and you.

h. Except as permitted on Fasken Edge, you must obtain our written permission to establish a link to our Templates. If you wish to do so, email your request to innovation@fasken.com.

10. Intellectual Property

a. All proprietary and intellectual property rights in Fasken Edge, including Content, Templates and tools auto-generating results and answers based on your input (“Decision Tools”), are owned by us or our licensors or service providers, and are protected by copyright, trademark, trade secret and other intellectual property laws.

b. If you provide us with ideas, comments or suggestions relating to Fasken Edge, including any Content, Template and / or Decision Tool (collectively, “Feedback”):

i. all such Feedback is and will be our exclusive property without any compensation or other consideration payable to you by us, including any intellectual property rights in the Feedback;

ii. we may use or disclose the Feedback for any purpose, including using or incorporating the Feedback in whatever form or derivative we may decide into Fasken Edge, the Templates, Decision Tools, the Content, our business or other products or services, or any future versions or derivatives of the foregoing; and

c. you hereby assign to us all intellectual property and other rights on a worldwide basis in perpetuity in the Feedback and, as applicable, waive any related moral rights.

11. Disclaimers

a. You and the Organization should not act or refrain from acting on the basis of any information or other Content included in Fasken Edge without seeking appropriate legal advice from legal counsel.

b. Fasken Edge is not intended to be a substitute for professional legal or business advice. You should seek professional legal or business advice before taking or refraining from taking any action on the basis of the Content contained on Fasken Edge.

c. We may suspend or withdraw or restrict the availability of all or any part of Fasken Edge for business and operational reasons, at any time. We will try to give you reasonable notice of any suspension or withdrawal, but such notice is not guaranteed.

d. TO THE EXTENT PERMITTED BY LAW, YOU HEREBY EXPRESSLY AGREE THAT FASKEN AND FASKEN’S LICENSORS, HAVE NO LIABILITY OR RESPONSIBILITY TO YOU OR ANY OTHER PERSON FOR ANY LOSS IN CONNECTION WITH:

i. ANY MODIFICATION OR ADAPTATION YOU MAKE TO A TEMPLATE;

ii. ANY TEMPLATE BEING UNAVAILABLE (IN WHOLE OR IN PART);

iii. ANY LEGAL, BUSINESS OR OTHER INFORMATION OR CONTENT CONTAINED IN A TEMPLATE WHATSOEVER, INCLUDING ANY ERROR OR OMISSION, OR INFORMATION OR CONTENT THAT IS OUT-OF-DATE;

iv. ANY EXPOSURE TO VIRUSES OR OTHER FORMS OF INTERFERENCE WHICH MAY DAMAGE YOUR COMPUTER SYSTEM OR EXPOSE YOU TO FRAUD WHEN YOU ACCESS OR USE THE TEMPLATES OR FASKEN EDGE. YOU ARE SOLELY RESPONSIBLE FOR ENSURING THE PROCESS BY WHICH YOU ACCESS AND USE THE TEMPLATES AND FASKEN EDGE PROTECTS YOU FROM VIRUSES AND OTHER FORMS OF INTERFERENCE; AND

v. ANY SITE LINKED FROM A TEMPLATE OR FASKEN EDGE. ANY LINK IN A TEMPLATE OR ON FASKEN EDGE TO OTHER SITES DOES NOT IMPLY ANY ENDORSEMENT, APPROVAL OR RECOMMENDATION OF, OR RESPONSIBILITY FOR, THOSE SITES OR THEIR CONTENTS, OPERATIONS, PRODUCTS OR OPERATORS.

e. The Templates are based on the laws of the applicable province of Canada specified in such Template, together with the federal laws of Canada applicable in such province, unless otherwise specified. We make no representation or warranty that the Templates are appropriate or available for use in other jurisdictions or that the content satisfies the laws of other jurisdictions. You are responsible for ensuring that your access to and use of the Templates is not illegal or prohibited, and for your compliance with applicable local laws. The Templates may be updated by us from time to time with or without notice and for any reasons, including to reflect changes in applicable laws. Therefore, we encourage you to check back regularly to confirm that you are using the latest version of each Template.THE FOLLOWING PARAGRAPHS IN THIS “DISCLAIMERS” CLAUSE DO NOT APPLY TO QUÉBEC CONSUMERS.

f. FASKEN DOES NOT REPRESENT OR WARRANT THAT THE CONTENT AVAILABLE ON FASKEN EDGE IS ACCURATE, COMPLETE, CURRENT, OR ERROR-FREE.

g. USE OF FASKEN EDGE, ANY THIRD PARTY SERVICES MADE AVAILABLE ON OR THROUGH FASKEN EDGE AND THE CONTENT IS PROVIDED ON AN “AS IS” BASIS WITHOUT REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED OR STATUTORY, INCLUDING ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THOSE ARISING BY STATUTE OR OTHERWISE IN LAW OR FROM THE COURSE OF DEALING OR USAGE OF TRADE. FASKEN DOES NOT REPRESENT OR WARRANT THAT FASKEN EDGE WILL OPERATE UNINTERRUPTED OR ERROR-FREE.

h. WHILE FASKEN AND ITS SERVICE PROVIDERS TAKE REASONABLE TECHNICAL AND ORGANIZATIONAL SECURITY MEASURES INTENDED TO PROTECT THE INTEGRITY OF FASKEN EDGE AND GUARD AGAINST UNAUTHORIZED ACCESS TO, USE, AND PROCESSING OF CONTENT, FASKEN AND ITS SERVICE PROVIDERS DO NOT REPRESENT, WARRANT OR GUARANTEE THAT: (1) FASKEN EDGE, THE CONTENT AND ANY THIRD PARTY SERVICES MADE AVAILABLE ON OR THROUGH FASKEN EDGE, ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (2) FASKEN EDGE AND ANY THIRD PARTY SERVICES MADE AVAILABLE ON OR THROUGH FASKEN EDGE WILL NOT BE SUBJECT TO UNAUTHORIZED ACCESS BY THIRD PARTIES (HACKING).

i. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL FASKEN BE LIABLE TO YOU OR THE ORGANIZATION OR ANY PARTY CLAIMING THROUGH OR UNDER YOU OR THE ORGANIZATION FOR ANY LOSS OF PROFITS, LOSS, DAMAGE OR CORRUPTION OF DATA OR SOFTWARE, EQUIPMENT DOWNTIME, OR FOR ANY INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, HOWEVER ARISING, RESULTING FROM THESE TERMS OF USE OR THE PERFORMANCE OR USE OF FASKEN EDGE AND ANY THIRD PARTY SERVICES MADE AVAILABLE ON OR THROUGH FASKEN EDGE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL ALL DAMAGES PAYABLE BY US TO YOU AND YOUR ORGANIZATION EXCEED IN AGGREGATE THE AMOUNT OF YOUR FASKEN EDGE SUBSCRIPTION PAID IN THE 12 MONTHS IMMEDIATELY PRIOR TO THE DATE ON WHICH THE FIRST EVENT GIVING RISE TO THE DAMAGES OCCURRED, OR THE SUM OF CAD $10,000, WHICHEVER AMOUNT IS HIGHER. YOU AND THE ORGANIZATION ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS OF LIABILITY ARE AN ESSENTIAL BASIS FOR THESE TERMS OF USE AND THAT IN THEIR ABSENCE THE ECONOMIC TERMS OF ACCESS TO FASKEN EDGE WOULD BE SUBSTANTIALLY DIFFERENT.

j. ALL EXCLUSIONS AND LIMITATIONS IN THESE TERMS OF USE SHALL ONLY APPLY SO FAR AS PERMITTED BY APPLICABLE LAW.

12. Your Indemnity and Release

a. THE FOLLOWING PARAGRAPHS IN THIS “YOUR INDEMNITY AND RELEASE” CLAUSE DO NOT APPLY TO QUÉBEC CONSUMERS.

b. You and the Organization will each indemnify, defend, and hold Fasken and its service providers harmless from and against all liabilities, damages, and costs (including settlement costs and reasonable legal fees) arising out of any claim made against Fasken or its service providers arising from: (a) any Content uploaded by or on behalf of you or the Organization, including any claim that the Content infringes or is alleged to infringe the intellectual property rights, or breaches or is alleged to breach the confidentiality or other rights of any person, or violates any civil or criminal law or regulation; (b) your use or the Organization’s use of Fasken Edge or any Content; (c) your breach, or the Organization’s breach, of any term, condition or representation in these Terms of Use; or (d) your use of a Template, including any transaction you enter into using a Template.

c. You and the Organization agree that Fasken will not be responsible for, and hereby release Fasken and its partners, lawyers, employees, agents and service providers from, any present or future losses or damages, including without limitation, direct, indirect, special, consequential, punitive or aggravated damages, caused to or incurred by you, the Organization, or any third parties arising directly or indirectly out of or in connection with the use or performance of Fasken Edge, the Content, or any unauthorized access to Fasken Edge or the Content.

13. Termination

a. Fasken reserves the right, with or without notice and in its discretion, to terminate or suspend your use of Fasken Edge at any time and for any reason. These Terms of Use may not be terminated by you or the Organization while either of you continues to use, access, or benefit from Fasken Edge.

b. THE FOLLOWING PARAGRAPH OF THIS “TERMINATION” CLAUSE DOES NOT APPLY TO QUÉBEC CONSUMERS.

c. For greater certainty, you renounce any termination rights granted by article 2125 of the Civil Code of Québec.

14. General

a. THE FIRST PARAGRAPH AND ONLY THE FIRST PARAGRAPH OF THIS “GENERAL” CLAUSE DOES NOT APPLY TO QUEBEC CONSUMERS.

b. These Terms of Use will be governed by and construed in accordance with the laws of British Columbia and the federal laws of Canada applicable in British Columbia, without regard to conflicts of law provisions that would apply a different body of law. Any dispute related to these Terms or Fasken Edge must be submitted to the exclusive jurisdiction of the courts sitting in Vancouver, British Columbia.

c. You acknowledge that failure to comply strictly with these Terms of Use will, despite any Content, Template and / or Decision Tool being available without charge, cause us loss, including loss by way of irreparable harm for which damages would be an inadequate remedy.

d. The Terms of Use apply to your use of Fasken Edge, but do not alter in any way the terms of any other agreement you or the Organization may have with Fasken for other services or products.

e. If any provision of these Terms of Use is determined to be unlawful, void, or for any reason unenforceable, then that provision will be deemed to be severed from these Terms of Use and the severance will not affect the validity or enforceability of the remaining provisions.

f. These Terms of Use are drawn up in English at the request of all parties. Les parties aux présentes on expressément convenu que ces Termes soit rédigés en Anglais