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Docusign Envelope ID: EBOF4108-19FB-44BO-8388-21F424553A38
<br /> such Party, provided, however, that Confidential Information shall not include any
<br /> data or information: (i) that, at the time of disclosure, is in or, after disclosure,
<br /> becomes part of the public domain, through no act or failure on the part of the
<br /> receiving Party, whether through breach of this Agreement or otherwise; (ii) that,
<br /> prior to disclosure by the disclosing Party, was already in the possession of the
<br /> receiving Party, as evidenced by written records kept by the receiving Party in the
<br /> ordinary course of its business, or as evidenced by proof of actual prior use by the
<br /> receiving Party; (iii) independently, custom developed by the receiving Party, by
<br /> Persons having no direct or indirect access to the disclosing Party's Confidential
<br /> Information provided that the receiving Party provides clear and convincing
<br /> evidence of such independent development; (iv) which, subsequent to disclosure,
<br /> is obtained from a third Person: (A) who is lawfully in possession of the such
<br /> information; (B) who is not in violation of any contractual, legal, or fiduciary
<br /> obligation to either Party, as applicable, with respect to such information; and (C)
<br /> on a non-confidential basis; or (v) is further disclosed with the prior written consent
<br /> of the disclosing Party, but only to the extent of such consent.
<br /> 1.3 "CPI" means for Customer located in Canada the consumer price index published
<br /> by Statistic Canada on the 1 st of the year and for Customer located in the United
<br /> States the consumer price index for all urban consumers published by the U.S.
<br /> Bureau of labor Statistics on the 1 at if the year.
<br /> 1.4 "Customer Data" means collectively any data, files, documentation, or other
<br /> information: (i) that Customer or any of its Authorized Users may upload to
<br /> Versaterm Platform when using the Services; and (ii) processed through the use
<br /> of the Services, excluding Third Party Data and any Versaterm Data.
<br /> 1.5 "Customizations" means all Customer-requested modifications made to the
<br /> Software or User Documentation by or for Versaterm in accordance with the terms
<br /> of a Service Schedule or Work Order, which shall be at Customer's expense.
<br /> 1.6 "Enhancements" means any changes or additions to the Software, that improve
<br /> functions, add new functions, improve performance, or corrects errors by changes
<br /> in system design or coding, including but not limited to changes or additions that
<br /> are made to the Software to provide substantial additional value or utility.
<br /> 1.7 "Fees" means the Subscription Fees, the License Fees, the Maintenance and
<br /> Support Fees, the Customization Fees and all other fees and charges charged by
<br /> Versaterm under this MSA, any Service Schedule, any SOW, or any other
<br /> attachment.
<br /> 1.8 "Go-Live Date" means the date on which the Software is available for production
<br /> use, as may be further defined in a Service Schedule or SOW.
<br /> 1.9 "including" means "including without limitation" and is not to be construed to limit
<br /> any general statement which it follows to the specific or similar items or matters
<br /> immediately following it.
<br /> 1.14 "Intellectual Property" means any property, tangible or intangible, that may be
<br /> subject to Intellectual Property Rights, including without limitation, ideas, formulae,
<br /> algorithms, concepts, techniques, processes, procedures, approaches,
<br /> methodologies, plans, systems, research, information, documentation, data, data
<br /> compilations, specifications, requirements, designs, diagrams, programs,
<br /> inventions, technologies, software (including its source code), tools, products
<br /> September 2024--v404092024 Page 2 of 24
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