End User License Agreement
1.1 “Authorized User” means a user whom the Customer has authorized to have access to the Service Provider Server (defined in provision s.1.12 below).
1.2 “Cloud-based Software” means software that is hosted on the Service Provider’s Servers (defined in provision s.1.12 below), and that the Customer has access to enjoy the Services (defined in provision s.1.11 below).
1.3 “Confidential Information” means confidential and proprietary information of the disclosing Party (“Party” defined in provision s.1.8 below), including without limitation, this Agreement with Schedules, the Software Suite (defined in provision s.1.14 below), data provided by the Customer as specified in writing or deemed in common sense as confidential, and all ideas, designs, business models, databases, drawings, documents, diagrams, formulas, test data, marketing, financial or personnel data, sales information, customer of supplier information, except for information that is lawfully available to the public other than through either Party’s breach of this Agreement.
1.4 “Customer Data” means any data, files, documentation or other information that the Customer or its Authorized Users may upload to the Service Provider System (defined in provision s.1.13 below) when using the Services (defined in provision s.1.11 below).
1.5 “Installable Application” means software installed on the Customer’s end, for example, on a desktop, a laptop, a smartphone, or any other electronic device.
1.6 “Intellectual Property Rights” means: (a) any and all proprietary rights anywhere in the world provided under (i) patent law; (ii) copyright law, including Moral Rights; (iii) trademark law; (iv) design patent or industrial design law; (v) semiconductor chip or mask work law; (vi) trade secret law; (vii) privacy law; or (viii) any other statutory provision or common law principle applicable to this Agreement which may provide a right in either: (A) intellectual property; or (B) the expression or use of intellectual property; and (b) any and all applications, registrations, licenses, sub-licenses, franchises, agreements or any other evidence of a right in any of the foregoing.
1.7 “Objectionable Content” means content that infringes any applicable laws, regulations or third-party rights, and content which is obscene, indecent, pornographic, seditious, offensive, defamatory, threatening, liable to incite racial hatred, menacing, blasphemous, misleading, deceptive or in breach of any person’s Intellectual Property Rights.
1.8 “Party” means either the Service Provider or the Customer; and “Parties” means both.
1.9 “Payment Terms” means when and how payments will be made, as specified in Schedule “A”.
1.10 “Raw Data” means data stored in the Service Provider System, placed by the Customer or its Authorized Users, that has not been processed by the Software Suite defined in provision s.1.14.
1.11 “Services” means collectively the services to be provided by the Service Provider to the Customer as specified in Schedule “A”.
1.12 “Service Provider Server” means that computer server located at the Service Provider’s premises, or a third-party provider of hosting and/or network services that operates the Cloud-based Software.
1.13 “Service Provider System” means the Cloud-based Software, the Service Provider Server and such devices and peripherals physically located with the Service Provider Server, including all computer hardware, software, network elements, and electrical and telecommunications infrastructure.
1.14 “Software Suite” means a collection of the Cloud-based Software and the Installable Application.
1.15 “User Documentation” means the documents, user manuals and guides with respect to the operation, use and functions of the Software Suite.
1.16 “Viruses” means a piece of code usually (but not necessarily) disguised as something else that causes some unexpected and, for the victim, usually undesirable, event and which is designed so that it could automatically spread to other computer users; and “Viruses” include, without limitation, worms, cancelbots, Trojan horses, harmful contaminants (whether self-replicating or not) and nuisance-causing or otherwise harmful applets.
1.17 “Avoidable Sensitive Information” (ASI) means any information that is stored by the Customer related to their business operations which may be considered sensitive, private, or critical in nature and is not business critical in nature. This includes, but is not limited to, the storage of financial information such as credit cards and banking information, Social Insurance Numbers or Social Security Numbers.
2. USE OF SERVICES
2.1 Grant by the Service Provider
The Service Provider will grant to the Customer a non-exclusive, non-transferable, and revocable right, for the purpose of providing the Services specified in the purchase order (Schedule “A”), to have access to the Service Provider System for:
(a) using the Software Suite;
(b) viewing and displaying the User Documentation; and
(c) uploading, processing, viewing, displaying, and using the Customer Data to and from the Service Provider System.
The Service Provider will provide the Services in accordance with the Service Level Agreement (Schedule “B”).
2.2 No Assignments or licenses of the Intellectual Property Rights of the Cloud-based Software
Except for the Customer’s authorized use of the Software Suite, the Service Provider will NOT grant the Customer any assignments or licenses to the Intellectual Property Rights of the Software Suite and the User Documentation.
2.3 Authorized Users
The Customer will only permit the Authorized Users in numbers specified in Schedule “A” to have access to the Service Provider System. The Customer will ensure that all Authorized Users are aware of the provisions of this Agreement, including their obligations to comply with the provisions contained herein as it relates to their use of the Services and the Software Suite. The Customer will be responsible and liable for the actions and omissions of each Authorized User and their compliance with the provisions herein.
2.4 Audit and Unauthorized Use
3. GRANT OF LICENSE TO SOFTWARE SUITE
The Service Provider will grant to the Customer a non-exclusive, non-sublicensable, and revocable license to install and use one (1) copy of the Software Suite for each Authorized User.
At the Service Provider’s sole discretion, Service Provider may grant permission to transfer this Agreement to a different entity.
One license is strictly limited to the course of business for one physical location which is listed above. The number of Authorized Users are specified in Schedule “A”.
Maintenance and training
The Service Provider will perform maintenance on the Service Provider System from time to time, preferably at such times to minimize the impact of any downtime of the Service Provider System to the Customer.
To the extent the Service Provider is able, the Service Provider will notify the Customer in advance of any scheduled maintenance by notifying the Authorized Users of the scheduled maintenance time and the anticipated duration of such maintenance.
The Service Provider is not liable for the Customer’s business inoperability due to any downtime of the Service Provider System caused by the maintenance or any other circumstances beyond the Service Provider’s control.
While the Service Provider respects feedback from the Customer, the Service Provider may, at its sole discretion, modify, enhance, upgrade, update, or customize the Software Suite.
Any modifications, enhancements, upgrades, updates or customization thereof requested by the Customer may be charged on an hourly basis specified in Schedule “A”.
The Service Provider will perform local or webinar-based initial training as specified in Schedule “A” for the Customer and its Authorized Users. Additional training required by the Customer will be charged on an hourly basis at a rate specified in Schedule “A”.
3.4 Customer Hardware Requirements
Customer shall obtain, maintain and operate, at its own expense, all hardware, equipment and software required to interface properly with the Software Suite. Customer agrees to use computer systems that meet Service Provider’s hardware requirements as currently in effect (and as modified from time to time and posted on Service Provider’s Website or otherwise provided to Customer). Customer acknowledges that some hardware and operating environments may not readily accept the current or future functionality of the Software Suite. Customer agrees, at its own expense, to make necessary changes or upgrades in hardware, software, memory, memory management and operating system environment to interface properly with the Software Suite. In the event that Service Provider is called upon to provide any support for Customer, the cause of which is deemed by Service Provider to result from use of the Software Suite with incompatible hardware/operating systems, Service Provider reserves the right to impose its standard support charge for such service. If Customer utilizes any interface program to interface with the Software Suite, Customer shall look solely to the supplier of such interface program with respect to any losses or damages caused by such interface program.
4.1 Ownership and Intellectual Property Rights
At no time will the Customer hold title to or ownership of any rights including, without limitation, the Intellectual Property Rights, in and to:
(a) the Cloud-based Software;
(b) the Installable Application;
(c) the Service Provider System;
(d) the User Documentation; and
(e) any modifications, enhancements, upgrades, updates or customization thereof.
4.2 Customer’s Prohibited Activities
The Customer will NOT:
(a) permit a third party to have access to the Service Provider System;
(b) take any action that imposes an unreasonable or disproportionately large load on the Service Provider System;
(c) make any copies of the Software Suite and the User Documentation except as expressly permitted in accordance with the provision s.3 of this Agreement;
(d) distribute copies of the Software Suite and the User Documentation to a third party;
(e) remove any Intellectual Property Rights notices;
(f) modify, adapt, translate or create derivative works of the Software Suite, or knowingly allow a third party to do any of the foregoing activities;
(g) reverse engineer, decompile, or disassemble the Software Suite, or otherwise attempt to discover the Software Suite’s source code, or knowingly allow a third party to do any of the foregoing activities;
(h) post, upload, include, or introduce any Objectionable Content, Viruses, Avoidable Sensitive Information or Confidential Information to the Service Provider System, or knowingly allow a third party to do any of the foregoing activities; and
(i) use the Services and the Software Suite for other improper or unlawful purposes.
The Customer assumes all liability for any damages incurred as a result of performing any or all of the prohibited activities listed above, regardless of circumstance or cause.
5. fees and Payment
The Customer will, in accordance with the Payment Terms specified in Schedule “A”, pay fees, including, without limitation, as follows:
(a) fees for use of the Services;
(b) fees for maintenance, initial training and initial set up;
(c) license fees for Software Suite;
(d) fees for additional training and customization, if any;
(e) fees for extracting Customer Data.
(collectively “the Fees”, as specified in Schedule “A”). The Fees are due and payable on the first day of every month via automated Electronic Fund Transfers. Credit card payments are subject to additional processing fees outlined in Schedule “A”.
The Fees will be pro-rated accordingly for any Effective Dates that are not aligned to the start of a month.
The Customer will pay any and all taxes, either designated or incurred, which are paid or payable as a result of or otherwise in connection with the transactions contemplated in this Agreement including, without limitation, federal, provincial, state, county and/or local, excise, sales, use, goods and services, harmonized, value added and any taxes or other amounts in lieu thereof.
5.3 Interest on Late Payments
In the event that the Customer fails to pay any amount in accordance with the Payment Terms specified in Schedule “A”, the Service Provider may, in addition to any other rights or remedies available to it, charge, and the Customer will pay, interest on such overdue amounts at a rate specified in Schedule “A” both before and after a court judgment in respect of the same from the date such payment was due.
The Service Provider will invoice the Fees, applicable taxes and interest on late payment, if any, in accordance with the Payment Terms specified in Schedule “A”.
6. Term and RENEWAL
This Agreement will commence on the Effective Date and will remain in full force and effect for sixty (60) months, unless otherwise terminated in accordance with the provisions s.8.2 and s.8.3.
6.2 Automatic Renewal
The Agreement will renew automatically for successive twelve (12) months unless written notice is provided by the Customer during a period of time specified in Schedule “A”. Renewal prices are subject to change at the Service Provider’s sole discretion.
7. sUSPENSION AND tERMINATION
7.1 Suspension of the Services
In the event that the Customer does not pay the Fees or any portion thereof, when due, the Service Provider may immediately suspend the Customer’s and each of its Authorized Users’ right to receive the Services, to get access to the Service Provider System and to use the Software Suite.
7.2 Customer’s Right to Terminate
The Customer may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if the Service Provider:
(a) breaches any material provision of this Agreement and such breach continues for a period of time specified in Schedule “A” after delivery of a written notice by the Customer requiring the Service Provider to correct such failure; or
(b) becomes bankrupt, insolvent or subject to any proceedings for the protection of the Service Provider from any of the Service Provider’s creditors, makes an assignment for the benefit of all or substantially all of the Service Provider’s creditors, or a receiver, receiver-manager or trustee is appointed for the Service Provider or any part of the Service Provider ‘s assets or business; or
(c) mutually agrees with the Customer in writing.
7.3 Service Provider’s Right to Terminate
The Service Provider may terminate this Agreement and the rights granted hereunder without prejudice to enforcement of any other legal right or remedy, immediately upon giving written notice of such termination if the Customer:
(a) fails to pay in full any sum owing by it under this Agreement by the due date thereof and such failure continues for a period of time specified in Schedule “A” after delivery of a written notice by the Service Provider requiring the Customer to correct such failure;
(b) infringes the Intellectual Property Rights of the Service Provider;
(c) breaches any other material provision of this Agreement and such breach continues for a period of time specified in Schedule “A” after delivery of a written notice by the Service Provider requiring the Customer to correct such failure;
(d) becomes bankrupt, insolvent or subject to any proceedings for the protection of the Customer from any of the Customer’s creditors, makes an assignment for the benefit of all or substantially all of the Customer’s creditors, or a receiver, receiver-manager or trustee is appointed for the Customer or any part of the Customer‘s assets or business; or
(e) mutually agrees with the Service Provider in writing.
8. effect of termination or expiration
Upon termination of this Agreement for any reason or expiration of this Agreement:
(a) the Service Provider may provide the Customer upon written request from the Customer with its Raw Data at a rate specified in Schedule “A”;
(b) the Service Provider will completely deny access of the Customer and its Authorized Users to the Software Suite;
(c) the Service Provider may destroy the Customer Data at its sole discretion during a period of time specified in Schedule “A” unless otherwise required by statute;
(d) the Customer will pay to the Service Provider the full amount of all the Fees payable hereunder as of the date of termination, whether already invoiced or not (including any amounts due as the Interest on Late Payment specified as provision 6.3), and any other monies owing to Service Provider hereunder; and
(e) each Party will return to the other Party or destroy all Confidential Information of the other Party which is then in its possession or control;
(f) and the Customer will completely remove any materials directly or indirectly related to the Software from any and all devices.
Upon termination of this Agreement for whatever reason, the Customer agrees to prioritize payment of all remaining Fees to the Service Provider.
The existence of this Agreement is not confidential, but the terms of this Agreement are confidential and must not be disclosed unless required to do so (a) in the performance of the obligations hereunder; (b) by law; or (c) for the purpose of obtaining confidential legal, financial or tax planning advice.
9.2 Confidential Information
Each Party will, and will cause its employees, agents and contractors to hold Confidential Information of the other Party in confidence, and will use the same degree of care by instruction, agreement or otherwise, to maintain the confidentiality of the other Party’s Confidential Information that it uses to maintain the confidentiality of its own Confidential Information, but with at least a reasonable degree of care commensurate with the nature and importance of such Confidential Information.
Each Party agrees not to make use of the Confidential Information other than for the exercise of rights or the performance of obligations under this Agreement, and not to release, disclose, communicate it or make it available to any a third party other than employees, agents and contractors of the Party who reasonably need to know it in connection with the exercise of rights or the performance of obligations under this Agreement.
In the event that any Party receives a request to disclose all or any part of the Confidential Information under the terms of a valid and effective subpoena or order issued by a court of competent jurisdiction or by a Governmental Authority, such Party agrees to:
(a) immediately notify the other Party of the existence, terms and circumstances surrounding such a request;
(b) consult with the other Party on the advisability of taking legally available steps to resist or narrow such request; and
(c) if disclosure of such Confidential Information is required, exercise its best commercially reasonable efforts to obtain an order or other reliable assurance that confidential treatment will be accorded to such portion of the disclosed Confidential Information which the other Party so designates.
9.4 Injunctive Relief
Each Party agrees that any unauthorized use or disclosure by it of any of the other Party’s Confidential Information, in whole or part, would cause irreparable damage to the disclosing Party, that monetary damages would be an inadequate remedy and that the amount of such damages would be extremely difficult to measure. The receiving Party agrees that the disclosing Party will be entitled to seek temporary and permanent injunctive relief to restrain the receiving Party from any unauthorized disclosure or use. Nothing in this Agreement will be construed as preventing the disclosing Party from pursuing any and all remedies available to it for a breach or threatened breach of a covenant made in provision s. 9, including the recovery of monetary damages from the receiving Party.
warrantIES and LIMITATION OF LIABILITY
The services and the Software Suite are being delivered to the Customer “as is” and the Service Provider makes no warranty as to its use of performance or interoperability with third party software and it is the responsibility of the Customer to ensure its system is compatible with the Service Provider’s system. The Service Provider does not and cannot warrant the performance of results the customer will obtain by using the Services or the Software Suite. The Service Provider makes no warranties, express or implied, as to non-infringement of third-party rights, merchantability, or fitness for any particular purpose.
9.6 Limitation of Liability
In no event will the Service Provider be liable to the Customer for any damages, claims or costs whatsoever or any consequential, indirect, incidental damages, or any lost profits or lost savings, whether based on breach of contract, negligence, product liability or otherwise, even if the Service Provider has been advised of the possibility of such loss, damages, claims or costs or for any claim by any third party. The Service Provider’s aggregate liability under or in connection with this agreement will be limited to the amount been paid for the services and the Software Suite, if any. The forgoing limitations and exclusions apply to the maximum extent permitted by applicable laws of the province of British Columbia.
10.1 Entire Agreement
This Agreement constitutes the entire agreement between the Parties concerning the subject matter hereof and supersedes all prior understandings, communications and agreements between the Parties.
10.2 Governing Law and Jurisdiction
This Agreement will be construed in accordance with and governed by the Laws of the Province of British Columbia, without regard for its conflict of laws rules, and the Parties irrevocably attorn to the exclusive jurisdiction of the court of the Province of British Columbia in the event of any proceeding or dispute under this Agreement.
The waiver by either Party of a breach or default of any provision of this Agreement by the other Party will not be effective unless in writing and will not be construed as a waiver of any succeeding breach of the same or of any other provision. Nor will any delay or omission on the part of either Party to exercise or avail itself of any right, power or privilege by such Party will constitute a waiver.
In the event that any provisions contained herein will be declared invalid, illegal or unenforceable by a court of competent jurisdiction, this Agreement with respect to enforceable provisions will continue in force and all rights and remedies accrued under the enforceable provisions will survive any such declaration, and any non-enforceable provision will be replaced by a provision which, being valid, comes closest to the intention underlying the invalid provision.
No amendment to the terms and conditions of this Agreement will be valid and binding on the Parties hereto unless made in writing and signed by an authorized representative of each of the Parties.
(a) This Agreement is personal to the Customer and the Customer will not assign or otherwise transfer any of its rights, or delegate, subcontract, or otherwise transfer any of its obligations under this Agreement without the Service Provider’s written consent.
(b) The Service Provider may assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations under this Agreement without prior consent of the Customer.
10.7 Force Majeure
If and to the extent that a Party’s performance of any of its obligations pursuant to this Agreement is prevented, hindered or delayed directly or indirectly by fire, flood, earthquake, elements of nature or acts of God, acts of war, terrorism, riots, civil disorders, rebellions or revolutions, or any other similar cause beyond the reasonable control of such Party (each a “Force Majeure Event”), and such non-performance, hindrance or delay could not have been prevented by reasonable precautions, then the non-performing, hindered or delayed Party shall be excused for such non-performance, hindrance or delay, as applicable, of those obligations affected (the “Affected Services”) by the Force Majeure Event for as long as the Force Majeure Event continues and, except as otherwise provided in this Section, such Party continues to use its commercially reasonable efforts to recommence performance whenever and to whatever extent possible without delay, including through the use of alternate sources, workaround plans or other means. The Party whose performance is prevented, hindered or delayed by a Force Majeure Event shall promptly notify the other Party of the occurrence of the Force Majeure Event and describe in reasonable detail the nature of the Force Majeure Event. During the Force Majeure Event, Customer will continue to pay the Fees to the Service Provider for the Services,
This Agreement will inure to the benefit of and be binding upon the Parties, their respective successors and permitted assigns.
The headings in this Agreement are provided for convenience only and will not be used to construe meaning or intent.
This Agreement may be executed and delivered in any number of counterparts and by way of electronic signature and delivery, each such counterpart, when executed and delivered, shall be deemed an original, and all of which together shall constitute the same agreement.