SOFTWARE LICENSE AGREEMENT
IMPORTANT – PLEASE READ THIS SOFTWARE LICENSE (“LICENSE”) AGREEMENT CAREFULLY BEFORE DOWNLOADING THE SOFTWARE OR ANY UPDATES ACCOMPANYING THIS LICENSE. BY DOWNLOADING THIS SOFTWARE OR A SOFTWARE UPDATE, AS APPLICABLE, YOU ARE AGREEING TO BE BOUND BY THE TERMS OF THIS LICENSE. IF YOU DO NOT AGREE TO THE TERMS OF THIS LICENSE, DO NOT DOWNLOAD THE SOFTWARE OR THE SOFTWARE UPDATE, AS APPLICABLE.
1. GENERAL: The software (including embedded software and third party software), documentation, interfaces, contents, fonts and any data with your License, as may be updated or replaced by feature enhancements, software updates or systems restore software provided by Celayix Inc. (Celayix), a company incorporated under the laws of the Canada Business Corporations Act, whether in read only memory, on any other data media or in any other form (“Celayix Software”) are licensed, not sold to you by Celayix for use only under the terms of this License. Celayix and its licensors retain ownership of the Celayix Software itself and reserve all rights not expressly granted to you. You agree that the terms of this License will apply to any Celayix related app that may be downloaded by you, unless such app is accompanied by a separate license.
(a) “Intellectual Property” means all of the party’s patents, trademarks, copyrights, trade secrets, publicity rights, likeness, inventions, discoveries, ideas, concepts, methods, marks, tooling, know-how, computer programs and related documentation, works of authorship fixed in a medium of expression, whether or not patentable, copyrightable, or subject to other forms of protection previously existing, arising thereafter, or arising out of work done under this Agreement.
(b) “Licensing Unit” means a measurement for which the use of the Service based on which the license fee is calculated. By way of example and without limiting the foregoing definition, licensing units may be concurrent users (employees and/or administrative), and sites.
(c) “Related Services” means those services ancillary to the license of the Service such as technical support, maintenance, training and configuration.
(d) “Licensee Data” means (i) any data, information, content or material provided or submitted by Licensee or its Users to Licensor, or stored or displayed on the User Interface Page in the course of utilizing the Service (“Licensee Content”); (ii) all information provided to Licensor regarding Licensee and its Users, including without limitation all information provided to permit Users to log in to and use the Services (“Licensee Information”); and (iii) any records, reports, compilations, results, or similar product resulting from the Licensee and its Users’ application of the Licensee Data to the Service (“Licensee Work Product”). Licensee and Licensor agree that Licensee Data is confidential information.
(e) “Order Form” is the agreement provided by the Licensor which will outline the various Services that will be provided to the Licensee. By way of example and without limiting the forgoing definition, the Order form will outline the various modules licensed and the associated costs.
(f) “Service” means the most current version of the Licensor’s hosted, online service including all software, programs or applications, as outlined in the Order Form, necessary to access and use the Service, and all related documentation and manuals.
(g) “User Interface Page” means the secure web site accessible via the URL or other designated web site or IP address that Licensor will host and maintain to enable Licensee and its Users to access and use the Service.
(h) “Users” means employees, representatives, consultants, contractors or agents of the Licensee or any of its customers, resellers, suppliers or distributors, who are authorized by Licensee to use the Service and have been supplied user identifications and passwords to access and use the Service.
(i) Provision of Service. Licensor will host and provide the Service to the Licensee and its Users. The service will be provided in accordance with the Service Level Agreement (“SLA”), as provided on the Licensor’s website, including making the Service available 24 x 7 (twenty-four hours per day, seven days per week). With respect to the provisions of the Service, Licensor represents, warrants and covenants that unless otherwise agreed to in writing: (i) the Service is and will be hosted within the United States and/or Canada; (ii) Licensor may sublicense any or all hosting capabilities for the Service to third parties without Licensee’s prior written consent; however, at all times remain primarily responsible for any third parties that may provide any assistance with respect to the provision of the Service.
(j) Privacy and Security. Licensor shall maintain security and confidentiality of the Service, the User Interface Page and any Licensee Data thereon.
(k) Publicity. Licensor may use the name of the Licensee in marketing materials and on its website for marketing purposes.
(l) Support. Licensor will provide support and maintenance services as set forth in the SLA.
3.OWNERSHIP AND LICENSES
(a) License Grant. Licensor grants to Licensee and its Users a license to access, use, execute, perform, and display the User Interface Page and Services throughout the Term. The license granted to the Licensee includes the right for Licensee to permit Licensee’s agents and contractors to exercise on behalf of Licensee the rights granted in this Agreement in connection with the agents or the contractors performing services for the Licensee.
(b) License to Documentation. The license granted to Licensee includes a license to the manuals, training materials, and other documentation accompanying the Service (collectively “Documentation”). The scope of the license to the Documentation is the same as the license for the Service.
(c) License to All Upgrades and Updates. The license granted to Licensee includes a license to all Upgrades and Updates to the User Interface and Service released by Licensor. An “Upgrade” means a new version of the User Interface or Service adding substantial new features or functionality, generally designated by a whole number change in the version number (e.g. Version 1.0 to Version 2.0). An “Update” means each bug fix, patch, modification, or enhancement that does not add substantial new features, generally designated by a change in version number to the right of the decimal point (e.g. Version 1.1 to Version 1.2). The scope of the license to Upgrades and Updates is the same as the license for the User Interface and Service and for greater certainty does not include any additional new modules that may be introduced.
(d) License Restrictions. Licensee may not modify, sell, distribute or transfer Service in whole or in part, except as provided in this Agreement. Licensor may not disclose the Licensee personally identifiable Data to any third party except as provided in Section 7. Licensor may use Licensee anonymized data to create aggregate data reports that do not include personally identifiable information as it deems necessary.
4.TERM AND TERMINATION
(a) Term. This Agreement is effective on the date the Order Form is signed and will continue until terminated, as provided in the Order Form, or expired.
(b) The Licensee may terminate this agreement as provided in the Order Form.
(c) The Licensor may terminate this agreement if the Licensee has failed to pay the fee outlined on the Order Form in the manner outlined on the Order Form.
(d) If Licensor terminates this agreement for the Licensee’s failure to pay, the Licensee’s access to the Service will be terminated without notice. Licensor may restore access upon full payment of all outstanding balances plus a restoration fee as determined by the Licensor.
5. INVOICES AND PAYMENTS
(a) During the term of the contract, Licensor will issue invoices as outlined in the Order Form.
(b) If there is a price increase in the services, Licensor will provide sixty (60) day notice of such price increase.
(c) Licensee will pay the undisputed invoices as they are due.
(d) If Licensee fails to pay any outstanding balances plus interest at contracted rate outlined in the Order Form and including without limiting the generality of foregoing, amounts for the balance of term of contract, Licensor may assign the outstanding balances to a Collection Agency. Any and all fees incurred, including all actual legal fees by the Licensor to collect outstanding balances from the Licensee shall be added to the outstanding Licensee balance.
6. USER CONDUCT
(a) Conduct. Licensee is solely responsible for the conduct of Licensee and Licensee Registered Users’ and Employees’ transmissions through the Service. Licensor does, however, reserve the right to take any action with respect to the Service, including without limitation suspension or termination of Licensee access to the Service, that Licensor deems necessary or appropriate in Licensor’s sole discretion if Licensor believes Licensee or Licensee Registered Users’ or Employees’ transmissions or use of the Service may create liability for Licensor. Licensee’s use of the Service is subject to all applicable local, state, provincial, national and international laws and regulations (including without limitation those governing account collection, export control, consumer protection, unfair competition, anti-discrimination or false advertising). Licensee agrees:
(i) to comply with all Canadian, United States and international laws, rules and other regulations applicable in connection with the Service;
(ii) not to use the Service for illegal purposes;
(iii) not to interfere or disrupt networks connected to the Service;
(iv) not to use the Service to infringe any third party’s copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
(v) not to transmit through the Service, any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene, profane or otherwise objectionable material of any kind or nature; and
(vi) not to knowingly transmit through the Service any information or software that contains a virus or other harmful, disruptive or destructive component. Licensee will not attempt to gain unauthorized access to other computer systems and Licensee will not interfere with another user’s use and enjoyment of the Service.
(b) Proprietary Rights. Licensor and its suppliers and licensors of any software or technology comprising part of the Service are and will remain the sole and exclusive owner of all right, title and interest, including copyright and all intellectual property rights, in and to the Service, all of the technology used by Licensor to provide the Service, all information, documents, files, text and graphics (collectively “Materials”) available as part of the Service, and all enhancements, updates, modifications or additions thereto, including but not limited to enhancements suggested by Licensee and incorporated into the Service, whether subject of a specific Statement of Work and paid for by the Licensee or as a result of a suggestion. Licensee will acquire no rights whatsoever to all or any part of the foregoing except the right to access and use them online as contemplated and permitted by the Service and in accordance with the terms of this Agreement. Licensee agrees not to copy, republish, frame, download, transmit, modify, rent, lease, loan, sell, assign, distribute, license, sublicense, reverse engineer, or create derivative works based on the Service and the Materials, or their selection and arrangement. In addition, Licensee agrees not to use any data mining, robots, or similar data gathering and extraction methods in connection with use of the Service.
(c) Trademarks. Licensor and the Licensor logo, and other names, logos, icons and marks identifying Licensor’s products and services are trademarks of Licensor and may not be used without the prior written permission of Licensor.
(a) Licensor has Licensee’s consent to share the information;
(b) Licensor finds that Licensee actions on the Service violate this Agreement; or
8. MODIFICATIONS TO AGREEMENT. Licensor may amend this Agreement at any time by
(a) posting a revised Agreement on the Service and
(b) sending information regarding the amendment to the email address Licensee provided to Licensor sixty days prior to the effective date of the modifications. Licensee is responsible for regularly reviewing the Service to obtain timely notice of such amendments. Licensee’s continued use of the Service after such amended terms have been posted or information regarding such amendment has been sent to Licensee will constitute Licensee’s acceptance of such amendments. Otherwise, this Agreement may not be amended except in writing signed by both parties. Further, Licensor reserves the right to modify or discontinue the Service with sixty day written notice to Licensee. Licensor will not be liable to Licensee or any third party should Licensor exercise its right to modify or discontinue the Service.
9. PASSWORDS AND SECURITY. As part of the registration process, Licensee will use Licensee user name and Licensee will choose Licensee passwords for access to Licensee Service account and to Licensee designated devices. Licensee agrees to carefully safeguard all of Licensee passwords. Licensee is solely responsible if Licensee does not maintain the confidentiality of passwords and account information. Furthermore, Licensee is solely responsible for any and all activities that occur under Licensee Service account by Licensee, Licensee Registered Users and Employees, and by anyone else authorized by the Licensee. Licensee agrees to immediately notify Licensor of any unauthorized use of Licensee Service account or any other breach of security known to Licensee, including if Licensee believe that Licensee password or account information has been stolen or otherwise compromised.
10. SERVICE WARRANTY
(a) Performance to Specifications. Licensor warrants that the Service will perform in accordance with all published specifications (as in effect as of the Celayix Order Date). If the Service contains any materials warranted by third parties, then Licensor assigns these warranties to Licensee. Licensor further warrants that (i) the User Interface Page and the Service will be available to Licensee and its Users as described in the SLA; (ii) any and all Related Services will be performed in a fully workmanlike manner.; and (iii) Licensor will maintain the security and confidentiality of the User Interface Page, and all Licensee Data, and prevent access thereto by any third party other than Licensee and its Users.
(b) No Virus Code. Licensor warrants that the Service does not contain any virus, worm, or any other harmful code that could modify, disable, erase, or otherwise damage the Service or any other data, hardware, or software.
(c) No Open Source Software. Licensor warrants that the Service does not include any software that requires as a condition of its use, modification, or distribution, that the software must be (a) disclosed or distributed in source code form, (b) licensed for the purpose of making derivative works, or (c) redistributed free of enforceable intellectual property rights. Licensor warrants that the Service does not include any code that is licensed or distributed under the GNU’s General Public License or Lesser/Library GPL; the Artistic License; the Mozilla Public License; the Common Public License; the Sun Community Source License; the Sun Industry Standards Source License; or variations of the preceding licensing and distribution models.
(d) Warranty Remedies. If the Service does not meet the warranties in this Agreement, then Licensee may require Licensor to
(i) repair the Service until it meets the warranties;
(ii) replace the Service with other software that meets the warranties and all other specifications;
11. DISCLAIMER OF WARRANTIES. LICENSEE EXPRESSLY AGREES THAT USE OF THE SERVICE AND SUPPORT IS AT LICENSEE’S SOLE RISK. THE SERVICE AND SUPPORT ARE PROVIDED ON AN “AS IS” BASIS. LICENSOR EXPRESSLY DISCLAIMS ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE.. LICENSOR MAKES NO WARRANTY THAT THE SERVICE OR SUPPORT WILL MEET LICENSEE REQUIREMENTS OR THAT THE SERVICE OR SUPPORT WILL BE UNINTERRUPTED, TIMELY OR ERROR FREE, NOR DOES LICENSOR MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE OR SUPPORT OR THE ACCURACY OF ANY OTHER INFORMATION OBTAINED THROUGH THE SERVICE OR SUPPORT. LICENSEE UNDERSTANDS AND AGREES THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE AND SUPPORT IS DONE AT LICENSEE’S OWN RISK AND THAT LICENSEE WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO LICENSEE’S COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR DATA AND USE OF THE SERVICE AND SUPPORT. NO INFORMATION OR ADVICE, WHETHER ORAL OR WRITTEN, OBTAINED BY LICENSEE FROM LICENSOR OR THROUGH THE SERVICE OR SUPPORT SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO LICENSEE.
12. LIMITATION OF LIABILITY. IN NO EVENT SHALL LICENSOR OR ANY OF ITS SUPPLIERS OR LICENSORS OF ANY SOFTWARE OR TECHNOLOGY COMPRISING PART OF THE SERVICE BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, OR PUNITIVE, EXEMPLARY OR AGGRAVATED DAMAGES, RESULTING FROM THE USE OR THE INABILITY TO USE THE SERVICE OR SUPPORT, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, EVEN IF LICENSOR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE AGGREGATE LIABILITY TO LICENSEE OR ANY THIRD PARTY OF LICENSOR AND ITS SUPPLIERS AND LICENSORS OF ANY SOFTWARE OR TECHNOLOGY COMPRISING PART OF THE SERVICE IS LIMITED TO DIRECT DAMAGES NOT TO EXCEED THE SUBSCRIPTION FEES PAID TO LICENSOR IN THE PRECEDING TWELVE MONTHS. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE.
13. CAUSES BEYOND LICENSOR’S CONTROL. Licensor will not be liable for any delay or failure to perform resulting directly or indirectly from any causes beyond Licensor’s reasonable control, including without limitation any inability to provide the Service by reason of fire, earthquake, explosion, flood, other natural disaster or act of God, government actions, war, riot, telecommunications interruption or power supply failure, unavailability of or interruption or delay in third party systems, networks or services, failure of software or a failure or malfunction of equipment which could not be reasonably foreseen or provided against, or any other cause beyond the reasonable control of Licensor, whether or not similar to the foregoing.
(a) Mutual Indemnity. Licensor and Licensee each agree to indemnify, defend and hold harmless the other, and its affiliates, officers, directors, employees, agents, successors, and assigns, from any and all Losses and threatened Losses arising from, in connection with, or based on allegations of, any of the following: (a) the death or bodily injury of any agent, employee, customer, business invitee, or business visitor or other person caused by the negligence or willful misconduct of the indemnitor; (b) the damage, loss or destruction of any real or tangible personal property caused by the negligence or willful misconduct of the indemnitor; and (c) any claim, demand, charge, action, cause of action, or other proceeding asserted against the indemnitee but resulting from an act or omission of the indemnitor in its capacity as an employer of a person. (b) Licensee hereby agree, unless otherwise provided in this agreement, at Licensee’s expense, to indemnify, defend and hold Licensor harmless from and against any loss, cost, damages, liability or expense arising out of or relating to (i) a third-party claim, action or allegation of infringement based on information, data, files or other content submitted by Licensee; (ii) any fraud or manipulation by Licensee; (iii) any breach of this Agreement by Licensee; (iv) any third-party claim, action or allegation brought against Licensor arising out of or relating to Licensee’s use of the Service or Support; or (v) any use of the Service or Support by Licensee’s Registered Users and Employees. (c) Licensor hereby agrees, unless otherwise provided in this agreement, to indemnify, defend and hold harmless the Licensee, its affiliates, and their officers, directors, employees, agents representatives and contractors, from any and all claims, losses, liabilities, costs and expenses, including reasonable attorney’s fees, as incurred, arising out of, relating to or resulting from third party claims based upon any claim by third party that the Services or any other materials of any nature furnished by the Licensor, or that the use thereof, infringes, misappropriates or violates such third party’s Intellectual Property Rights (“Claim”). (d) Licensee will promptly notify Licensor of any Claim for which it seeks indemnity under the terms of this Agreement. Licensee will permit Licensor to control, in a manner not adverse to Licensee, the defense and settlement of any Claim using counsel reasonably acceptable to Licensee. Licensee may employ counsel at their own expense with respect to any Claim. If Licensee employs counsel due to a Licensor conflict of interest or because Licensor does not assume control of the defense, then Licensor will bear the expense. Licensee will give reasonable assistance and cooperation to Licensor in the defense of the Claim. Licensor will not admit liability or enter into any settlement that adversely affects a Licensee’s rights or interests without their prior written approval.
15. No Consequential Damages. Neither Party shall be liable to the other for special, indirect, incidental, consequential, or punitive damages of the other or for any form of damages (even if advised of the possibility thereof) other than direct damages arising out of, or in connection with, this Agreement or the subject matter hereof.
16. GENERAL TERMS. All rights not expressly granted in this Agreement are reserved to Licensor. This Agreement is governed in all respects by the laws of the Province of British Columbia and the federal laws of Canada applicable therein without regard to conflicts of law principles that would apply a different body of law. The International Sale of Goods Act (British Columbia) and the UN Convention on Contracts for the International Sale of Goods will not apply to this Agreement. Both parties submit to the exclusive jurisdiction of the courts of British Columbia and further agree that any cause of action relating to this Agreement will be brought in a court in British Columbia. If any provision of this Agreement is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. Licensor’s failure to act with respect to a breach by Licensee does not waive Licensor’s right to act with respect to subsequent or similar breaches. Licensee may not assign or transfer this Agreement or any rights hereunder, and any attempt to the contrary is void. This Agreement will inure to the benefit of and be binding upon each party’s successors and permitted assigns. Unless otherwise provided in this Agreement, any notice required or permitted to be given under this
Agreement will be delivered
(a) by hand;
(b) by registered or certified mail, postage prepaid and return receipt requested to the address provided by the other party, or to such other address as a party may designate by written notice in accordance with this provision;
(c) by overnight courier; or
(d) by electronic mail with confirming letter mailed under the conditions described in (b). Notice so given will be deemed effective when received, or if not received by reason of fault of addressee, when delivered. Nothing in this Agreement will make or be construed to make Licensee and Licensor partners or agents of each other or to create any other relationship by which the acts of any party may bind the others or result in any liability to the other. This Agreement constitutes the complete and exclusive understanding and agreement of the parties relating to the subject matter hereof and supersedes all prior understandings, proposals, agreements, negotiations and discussions between the parties, whether written or oral.
Licensee understands and agrees that Licensee is solely responsible for periodically reviewing the Terms of Service.