IMPORTANT – BY ACCEPTING THIS AGREEMENT, EITHER BY SIGNING A PAPER VERSION OF THIS AGREMENT OR BY CLICKING THE “I ACCEPT” BUTTON INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY USING THIS PRODUCT, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS “COMPANY” SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE PRODUCT. YOU MAY NOT USE THE PRODUCT IF YOU ARE A DIRECT COMPETITOR, UNLESS AGREED TO IN WRITTING BY AGILEDSS INC.
This End-User Licence Agreement (“Agreement”) is in effect as of the date it is accepted by and between agileDSS INC. (“agileDSS”) a Canadian corporation having its principal place of business at 630 Sherbrooke West, Suite 450, Montreal, Quebec, Canada, H3A 1A4 and Company (“Company”).
agileDSS and Company can be designated together as the “PARTIES” or individually as a “PARTY”.
The PARTIES agree as follows:
1. Grant of Right to Use
Subject to the terms and conditions of this Agreement, agileDSS grants to Company a free, perpetual, non-exclusive, and non-transferable right to use certain proprietary software applications named agileWORKFLOW ("Software"), modifications or revisions to the Software (“Software Upgrades”), together with applicable documentation and the accompanying media, if any, (collectively, the “Product”). Subject to compliance with the terms of this Agreement, the expression “Company” also includes Imperial Tobacco Canada Limited’s affiliates and any subcontractor executing work for the its benefit within its location. Subject to compliance with the terms of this Agreement, Company may relocate or transfer the Product for use on a different server and workstation within its location(s).
2. Applicable Fees
The Product includes the capabilities to manage and execute one processing stream (“Thread”) at a time. For a fee, the Product’s base capability can be scaled to be able to manage and execute multiple processing streams or Threads concurrently.
Notwithstanding the “free and unlimited use” of the Product’s one-at-a-time single processing stream capability, subscription fees (“Subscription Fees”) are applicable and based on the total number of Threads (beyond one) use in Company’s own internal business operations (not for the benefit of any other person or entity), and on a one (1) year period subscription (“Subscription Term”) set forth in the applicable purchase commitment mutually agreed upon by the parties (“Order”).
The maximum annual increase in the current Subscription Fees for the Software will be limited to the annual increase of the Consumer Price Index on an annual basis for each Subscription Term.
Company may only increase the number of Threads in use, if Company increases its Order and pays the corresponding additional Subscription Fees. All Subscription Fees paid for additional Threads are non-refundable.
The Subscription Fees stated in an Order may not include taxes. If agileDSS is required by law to collect sales, value-added or other taxes based on the Subscription Fees provided under this Agreement or on Company’s use of the Product, then such taxes shall be billed to and paid by Company. This Section does not apply to taxes based on agileDSS’s income.
4. Records Inspection & Audit
AgileDSS, upon reasonable notice, may remotely inspect Company deployments where the Software is used and to confirm Company compliance with this Agreement.
5. Standard Technical Support & Community Portal
For the Subscription Fees, agileDSS shall make available to Company the technical support and the upgrades for the Product as defined in this Section. Standard technical support includes 1) access to the online website and/or community portal, and 2) technical interactive assistance for the Product during the Subscription Term, and is available only if Company has paid the applicable Subscription Fees for all Threads in use. Technical support is provided pursuant to the terms of this Agreement and the current technical support policies (“Support Policies”) which are available at awf.agileDSS.com/support. The Support Policies define the time frames during which our Software products are eligible for patch support and technical interactive assistance. If Company has not executed an Order for additional Threads, Company has only access to the website and/or community portal for available Software Upgrades to the supported major release(s) of the Product.
6. Representations and Warranties
AgileDSS represents and warrants to Company that: (i) the Software is the sole and exclusive property of AgileDSS;(ii) it has the right, power and authority to make modifications, enhancements and customizations to the Software;(iii) it has the right, power and authority to grant the licenses and rights granted to Company hereunder and to authorise the use of the Software it purports to so authorise;(iv) the Software does not and will not infringe upon or violate any laws or regulations or any rights of third parties, including, but not limited to, infringement or misappropriation of intellectual property rights, confidentiality rights, or to defamation;(v) the related documentation for the Software will be sufficient in all respects to allow: (i) a computer systems analyst to install such software such that installed software will function in accordance with the documentation and material furnished by agileDSS to Company which are related to the Software; (ii) Company to train users of the Software to use the same in accordance with its specifications; and (iii) a user of the Software to operate and use the same.
For the software and equipment of third parties supported and maintained by agileDSS for the Software, if any, agileDSS represents and warrants to Company that it has all required authorizations to provide such services and that such services do not and will not infringe upon or violate any laws or regulations or any rights of third parties, including, but not limited to, infringement or misappropriation of intellectual property rights and confidentiality rights.
7. Protection & Restrictions
Company agrees to take all reasonable steps to safeguard the Product to ensure that no unauthorized person has access thereto and that no unauthorized copy, publication, disclosure or distribution, in whole or in part, in any form is made. Company acknowledges that the Product contains valuable, confidential information and trade secrets and that unauthorized use and/or copying is harmful to agileDSS.
Unless specifically authorized in writing in advance by agileDSS, Company may not rent, lease or timeshare the Product or provide subscription services for the Product or permit others to do so. Any source code provided to Company by agileDSS is subject to the terms of this Agreement. Subject to the terms of this Agreement, Company may allow its agents and independent contractors to use the Product solely for the benefit of Company; provided, however, Company remains responsible for any breach of this Agreement. Any other use of the Products by any person, business, corporation, government organization or any other entity is strictly forbidden and is a violation of this Agreement.
Company may not directly or indirectly transfer, assign, publish, display, disclose, modify, loan, distribute, or create derivative works based on the Product or any part thereof. Company may not reverse engineer (except as required by law in order to assure interoperability), decompile, translate, adapt, or disassemble the Product, nor shall Company attempt to create the source code from the object code for the Software. Any third party software included in the Product may only be used in conjunction with the Product, and not independently from the Product. Company represents and warrants that it will comply with all laws, rules and regulations which apply to its use of the Product.
8. Intellectual Property Rights
The Product and all intellectual property rights therein and related thereto are the sole and exclusive property of agileDSS and any third party from whom agileDSS has licensed software for incorporation in or distribution with the Product. All right, title and interest in and to the Product and any modifications, translations, or derivatives thereof, even if unauthorized, and all applicable rights in patents, copyrights, trade secrets, trademarks and all intellectual property rights in the same shall remain exclusively with agileDSS and its licensors. The Product is valuable, proprietary, and unique, and Company agrees to be bound by and observe the proprietary nature thereof. The Product contains material that is protected by patent, copyright and trade secret law, and by international treaty provisions. All rights not granted to Company in this Agreement are reserved to agileDSS. No ownership of the Product passes to Company. AgileDSS may make changes to the Product at any time without notice. Except expressively provided, agileDSS grants no expressed or implied right under agileDSS patents, copyrights, trademarks, or other intellectual property rights. Company may not remove any proprietary notice of agileDSS or any third party from any copy of the Product.
9. Third Party Claims
AgileDSS will, at its own expense, defend or settle any claim, suit, action, or proceeding brought against Company by a third party to the extent it is based on an allegation that the Product directly infringes any patent, copyright, trademark, or other proprietary right enforceable in the US or Canada or misappropriates a trade secret in such country (an “Infringement Claim”). Additionally, agileDSS shall pay any judgments finally awarded against Company under an Infringement Claim or any amounts assessed against Company in any settlements of an Infringement Claim, and reasonable administrative costs or expenses, including, without limitation, reasonable attorneys’ fees necessarily incurred by Company in responding to the Infringement Claim. AgileDSS’s obligations under this Section are conditioned upon Company (i) giving prompt written notice of the Infringement Claim to agileDSS; (ii) permitting agileDSS to retain sole control of the investigation, defence or settlement of the Infringement Claim, and (iii) providing agileDSS with such reasonable cooperation and assistance as agileDSS may reasonably request from time to time in connection with the investigation, defence or settlement of the Infringement Claim, at agileDSS's expense. AgileDSS shall have no obligation hereunder to defend Company against any Infringement Claim (a) resulting from use or modification of the Software other than as authorized in this Agreement, or (b) based on Company’s use of the Software after agileDSS recommends in writing to Company the discontinuation because of possible or actual infringement, (c) based on Company’s use of a superseded or altered release of Software if the infringement would have been avoided by use of a current or unaltered release of the Software made available to Company, or (d) to the extent the Infringement Claim arises from or is based on the use of the Software with other products or services not supplied by or on behalf of agileDSS if the infringement would not have occurred but for such use. If Company’s use of the Software is enjoined as a result of a Infringement Claim, agileDSS shall, at its expense and option either (i) obtain for Company the right to continue using the Software, (ii) replace the Software with a functionally equivalent non-infringing product, (iii) modify the Software so that it is non-infringing, or (iv) accept the return of the infringing Software and refund the Subscription Fees paid for the infringing Software, pro-rated over a sixty (60) month period from the date of delivery of the Software following an order. Upon request of Company, agileDSS shall keep Company informed of developments in relation to any Infringement Claim. This Section states the entire liability of agileDSS, and Company’s sole and exclusive remedy, with respect to an Infringement Claim.
“Confidential Information” means any information or materials disclosed by one party (the “Disclosing Party”) to the other party (the “Receiving Party”) that are not generally available to the public and which, due to their character and nature, a reasonable person under like circumstances would treat as confidential, including, without limitation, personal data, financial, business, technical and marketing information, trade secrets, know-how, proprietary tools, proprietary knowledge and proprietary methodologies, and any information to which the Receiving Party may have access, in the course of the performance of this Agreement. Without limiting the generality of the foregoing, agileDSS agrees that any information to which agileDSS may have access by remote access or in the course of verification, review or an audit under this Agreement are Confidential Information of Company and are subject to the terms of this Section. Confidential Information of both agileDSS and Company includes the terms of this Agreement. Confidential Information of agileDSS includes the Product, the pricing and discounting offered by agileDSS to Company hereunder, information regarding the functionality and performance of the Products, and any Software license keys provided to Company, if any. Confidential Information shall not include information or materials that (a) were, on the effective date of the Agreement, generally known to the public; (b) become generally known to the public after the effective date of the Agreement other than as a result of the act or omission of the Receiving Party; (c) were known to the Receiving Party without an obligation of confidentiality prior to that party receiving the same from the Disclosing Party or on its behalf; (d) the Receiving Party lawfully received from a third party without that third party’s breach of agreement, duties or obligation of confidentiality; or (e) are or were independently developed by the Receiving Party without access to or use of the Disclosing Party’s Confidential Information. Additionally, it shall not be a breach of this Section for the Receiving Party to disclose the Disclosing Party’s Confidential Information as may be required by operation of law or legal process, provided that the Receiving Party provides prior notice of such disclosure to the Disclosing Party unless expressly prohibited from doing so by a court, arbitration panel or other legal authority of competent jurisdiction; provided, however, that if the Disclosing Party does not succeed in preventing the disclosure of the Disclosing Party's Confidential Information, the Receiving Party shall disclose only that portion of the Disclosing Party's Confidential Information that it is legally compelled to disclose. The Receiving Party shall not (1) make the Disclosing Party’s Confidential Information available to any of its services provider(s), affiliates, directors, officers, employees, consultants or representatives (collectively, the “Representatives”), who do not have a “need to know” in order to carry out the purposes of this Agreement; (2) otherwise disclose the Disclosing Party’s Confidential Information to any third party without the prior written consent of the Disclosing Party; or (3) use the Disclosing Party’s Confidential Information for any purpose other than as contemplated by this Agreement. The Receiving Party shall inform its Representatives of the confidential nature of the Disclosing Party’s Confidential Information and the requirements regarding restrictions on disclosure and use as set forth in this Section and shall disclose the Disclosing Party’s Confidential Information only to its Representatives who are legally bound to protect the Confidential Information under terms at least as restrictive as those provided herein. The Receiving Party agrees to protect the Disclosing Party’s Confidential Information from unauthorized use or disclosure by exercising at least the same degree of care it uses to protect its own similar information, but in no event less than a reasonable degree of care. The Receiving Party shall be liable to the Disclosing Party for any disclosure in violation of this Agreement by any of its Representatives. The Receiving Party shall promptly notify the Disclosing Party of any known unauthorized use or disclosure of the Disclosing Party’s Confidential Information and will reasonably cooperate with the Disclosing Party in any litigation brought by the Disclosing Party against third parties to protect its proprietary rights.
Following the delivery of the Software by agileDSS, (i) the Software will be free from material defects in materials and workmanship under normal use, (ii) the operation of the Software, as provided by AgileDSS, will substantially conform to the documentation applicable to such Software, and (iii) the Software, as delivered by agileDSS does not contain any viruses, worms, Trojan Horses, or other malicious or destructive code (collectively the “Warranties”). Company must give written notice to agileDSS of any breach of the Warranties no later than thirty (30) business days following the acknowledgement of an event causing the breach of the Warranties.
Company’s exclusive remedies, and agileDSS’s sole obligations, for any breach of the Warranties set forth in this Section 11 (a) (i) and (ii) shall be as follows: (a) for the warranty in subsection (i), AgileDSS shall, at its expense, replace any defective Software; and (b) for the warranty in subsection (ii), AgileDSS shall correct or provide a workaround for reproducible errors in the Software that cause a breach of the warranty within a reasonable time considering the severity of the error and its effect on Company, or, at AgileDSS’s option, refund the Subscription Fees paid for the nonconforming Thread. For the Warranty set forth in this Section11 (a) (iii), AgileDSS shall be liable to Company for (a) the direct costs of restoring damaged or corrupted data from Company’s most recent back up files of such data, (b) the direct costs of removing the viruses, worms, Trojan Horses, or other malicious or destructive code (“Malware”), and (c) any disclosure of Company or third party information caused by the presence of the Malware. Additionally, agileDSS shall provide a copy of the Software that is free of any Malware. The parties agree that any disclosure of Confidential Information of Company or third party information stored by Company caused by the Malware shall be deemed a breach of the Confidentiality Section of this Agreement and shall not be subject to the limitations of liability set forth in this Section.
The foregoing Warranties shall not apply to any non-conformance (i) that agileDSS cannot recreate after exercising commercially reasonable efforts to attempt to do so, except in the case of non-conformance based on this Section 11 (a) (iii) in which case the Warranties shall apply to any such non-conformance; (ii) caused by misuse of the Software or by using the Software in a manner that is inconsistent with this Agreement or the documentation; or (iii) arising from the modification of the Software by anyone other than AgileDSS.
12. Limited Warranty and Disclaimer
EXCEPT AS EXPLICITLY SET FORTH HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW ALL OTHER WARRANTIES ARE EXCLUDED, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, TITLE OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE PRODUCTS.
13. Limitation of Liability
EXCEPT AS EXPLICITLY SET FORTH HEREIN AND TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL AGILEDSS BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE, ARISING OUT OF OR RELATED TO THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO CLAIMS FOR LOSS OF DATA, GOODWILL, OPPORTUNITY, REVENUE, PROFITS, OR USE OF THE PRODUCTS, INTERRUPTION IN USE OR AVAILABILITY OF DATA, STOPPAGE OF OTHER WORK OR IMPAIRMENT OF OTHER ASSETS, ACCESS TO OR USE OF ANY ADDRESSES OR FILES THAT SHOULD HAVE BEEN LOCATED OR BLOCKED, BREACH OF CONTRACT, TORT OR OTHERWISE AND THIRD PARTY CLAIMS, EVEN IF AGILEDSS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT AS EXPLICITLY SET FORTH HEREIN, IN NO EVENT WILL AGILEDSS’ AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT EXCEED THE TOTAL AMOUNT ACTUALLY PAID BY COMPANY TO AGILEDSS FOR THE APPLICABLE PRODUCT OVER THE SUBSCRIPTION TERM PRIOR TO THE EVENT OUT OF WHICH THE CLAIM AROSE FOR THE PRODUCT THAT DIRECTLY CAUSED THE LIABILITY.
This Agreement is effective until the end of the Subscription Term for such use as is authorized, or until terminated by either party. Company may, before the end of the Subscription Term, upon notice to agileDSS, renew this Agreement for the same period than the Subscription Term. Company may terminate this Agreement at any time upon notification to agileDSS. However, Company shall not be entitled to a refund of any prepaid or other fees. AgileDSS may terminate this Agreement if agileDSS finds that Company has violated the terms hereof. Upon notification of termination by either party, Company agrees to uninstall the Software, cease using and to destroy or return to agileDSS all copies of the Product and to certify in writing that all copies thereof, including backup copies, have been destroyed. Sections 6, 8, 9 and 10 shall survive the termination of this Agreement.
15. Third Party Products
The Product includes software products licensed from third parties. Such third parties have no obligations or liability to Company under this Agreement but are third party beneficiaries of this Agreement.
The Product provided under this Agreement is subject to export controls administered by the United States and other countries (“Export Controls”). Export or diversion contrary to U.S. law is prohibited. U.S. law prohibits export or re-export of the software or technology to Cuba, Iran, North Korea, Sudan and Syria or to a resident or national of those countries (“Prohibited Country” or “Prohibited Countries”). It also prohibits export or re-export of the software or technology to any person or entity on the U.S. Department of Commerce Denied Persons List, Entities List or Unverified List; the U.S. Department of State Debarred List; or any of the lists administered by the U.S. Department of Treasury, including lists of Specially Designated Nationals, Specially Designated Terrorists or Specially Designated Narcotics Traffickers (collectively, the “Lists”). U.S. law also prohibits use of the software or technology with chemical, biological or nuclear weapons, or with missiles (“Prohibited Uses”). Company warrants that it is not located in, or a resident or national, of any Prohibited Country; that it is not on any Lists; that it will not use the Software or technology for any Prohibited Uses; and that it will otherwise comply with Export Controls.
AgileDSS may periodically send Company messages of an informational or advertising nature via email. Company may choose to “opt-out” of receiving these messages by sending an email to optoutlegalawf@agileDSS.com request the opt-out. Company acknowledges and agrees that by sending such email and “opting out” it will not receive emails containing messages concerning upgrades and enhancements to Product. However, agileDSS may still send emails of a technical nature. Although Company may require, at any time, to withdraw from such list, Company acknowledges that agileDSS may use Company's name in a list of agileDSS clients. Company may not transfer any of Company’s rights to use the Product or assign this Agreement to another person or entity, without first obtaining agileDSS’s prior written approval. Notices sent to agileDSS shall be sent to the attention of the General Counsel at 630 Sherbrooke West, Suite 450, Montreal, Quebec, Canada, H3A 1E4. Any dispute arising out of or relating to this Agreement or the breach thereof shall be governed by the laws of the province of Quebec, Canada. Both parties hereby consent to the exclusive jurisdiction of the courts of the city of Montreal, Quebec, Canada. Both parties expressly waive any objections or defence based upon lack of personal jurisdiction or venue. Neither party will be liable for any delay or failure in performance to the extent the delay or failure is caused by events beyond the party’s reasonable control, including, fire, flood, acts of god, explosion, war or the engagement of hostilities, strike, embargo, labour dispute, government requirement, civil disturbances, civil or military authority, major disturbances to the Internet, and inability to secure materials or transportation facilities. This Agreement constitutes the entire Agreement between the parties hereto regarding the subject matter contained herein and the parties acknowledge that they have not relied on any promise, representation, or warranty, express or implied, that is not contained in this Agreement. Any waiver or modification of this Agreement shall only be effective if it is in writing and signed by both parties. If any part of this Agreement is found invalid or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be interpreted so as to reasonably reflect the intention of the parties. Each party agrees to comply with all applicable laws and regulations. AgileDSS is not obligated under any other agreements unless they are in writing and signed by an authorized representative of agileDSS. This Agreement includes Schedule A.
The PARTIES declare that they have requested that this Agreement and all accessory documents be drafted in English. Les parties aux présentes déclarent qu’elles ont exigé que le présent contrat et tout accessoire y afférant soient rédigés en anglais.
The PARTIES hereby agree to all of the above terms and have executed this Agreement by a duly authorized officer or officer representative.