Subscription Agreement / End User License Agreement for Pervidi Software and Proximity System
This End-User Licence Agreement and all of its Schedules (“EULA” or “Agreement”) is a legal agreement between you (individual(s) and/or entity(s)), the “CUSTOMER”, and Techs4Biz Corporation (“TECHS4BIZ”) for use of the Pervidi Software and Proximity solution (“PERVIDI”) including hardware and software (the ”SERVICES”). The SERVICES include any updates and supplements to the original SERVICES provided to you by Techs4Biz.
By using the SERVICES you agree to be bound by the terms of this EULA. If you are using the SERVICES on behalf of an organization, you are agreeing to these Terms for that organization and promising that you have the authority to bind that organization to these terms. If you do not agree to the terms of this EULA, do not use the SERVICES.
1. DEFINITIONS AND INTERPRETATION
In this Agreement, unless the contrary intention appears:
1.1 “Confidential Information” means information that by its nature is confidential, is designated by TECHS4BIZ as confidential, or which the recipient knows or ought to know is confidential, including information about the SERVICES;
1.2 “Force Majeure” means a circumstance beyond the reasonable control of the Parties, which results in a party being unable to observe or perform on time an obligation under this Agreement. Such circumstances shall include but shall not be limited to acts of God, lightning strikes, earthquakes, floods, storms, explosions, fire, and any natural disasters, acts of war, acts of public enemies, terrorism, riots, civil commotion, malicious damage, sabotage, or strikes.
1.3 “Sales Order” means the Sales Order form or Purchase Order completed by the CUSTOMER which forms part of these terms and conditions.
1.4 “Service Period” means the period commencing on the date of signing the Sales Order or Purchase Order and continuing for the service duration as expressly stated in the Sales Order or Purchase Order.
1.5 “Intellectual Property Rights” means copyright, trade mark, design, patent, interest, and other rights whether registered or not, and including any rights to register such intellectual property;
1.6 “Users” means individuals who are authorized by THE CUSTOMER to use the SERVICES and who have been supplied user identifications and passwords by THE CUSTOMER or by TECHS4BIZ.
This Agreement commences on the date specified in the Sales Order or Purchase Order or on the date of first use of the SERVICES, whichever is earlier. This Agreement will continue until the expiration of the Service Period (the “Term”). The use of the SERVICES by the CUSTOMER is deemed acceptance by the CUSTOMER of the terms in this Agreement.
3. PROVISION OF SERVICES
3.1 Services Use. During the Term of this agreement, TECHS4BIZ will provide access to the SERVICES in accordance with the Agreement, and CUSTOMER may use the SERVICES in accordance with the Agreement.
(a) To the SERVICES. TECHS4BIZ may make commercially reasonable updates to the SERVICES from time to time. TECHS4BIZ will inform CUSTOMER if TECHS4BIZ makes a material change to the SERVICES that has a material impact on Customer’s use of the SERVICES.
(b) To the Agreement. TECHS4BIZ may make changes to this Agreement from time to time. Unless otherwise noted by TECHS4BIZ, material changes to the Agreement will become effective 30 days after they are posted, except to the extent the changes apply to new functionality in which case they will be effective immediately. TECHS4BIZ will provide at least 90 days’ advance notice for materially adverse changes to any SERVICES by (i) sending an email to the Notification Email Address; or (ii) posting a notice to the applicable PERVIDI webpage.
4. CUSTOMER OBLIGATIONS
4.1 Compliance. CUSTOMER will (a) ensure that CUSTOMER and its End Users’ use of the SERVICES complies with the Agreement, (b) use commercially reasonable efforts to prevent and terminate any unauthorized use of, or access to, the SERVICES, and (c) promptly notify TECHS4BIZ of any unauthorized use of, or access to, the SERVICES, or Customer’s password of which Customer becomes aware. TECHS4BIZ reserves the right to investigate any potential violation by CUSTOMER, which may include reviewing Customer Applications or Customer Data.
4.2 Privacy. CUSTOMER is responsible for any consents and notices required to permit (a) CUSTOMER’s use and receipt of the SERVICES and (b) TECHS4BIZ’s accessing, storing, and processing of data provided by CUSTOMER (including CUSTOMER Data, if applicable) under the Agreement.
4.3 Restrictions. CUSTOMER will not, and will not allow Users or others to, (a) copy, modify, or create a derivative work of the SERVICES; (b) reverse engineer, decompile, translate, disassemble, or otherwise attempt to extract any or all of the source code of, the SERVICES; (c) sell, resell, sublicense, transfer, or distribute any or all of the SERVICES; or (d) access or use the SERVICES (i) for High Risk Activities; (ii) in violation of the Agreement; (iii) in a manner intended to avoid incurring fees (including creating multiple Customer Applications, or Projects to simulate or act as a single Customer Application or Account or to circumvent Service-specific usage limits or quotas; (iv) operate or enable any telecommunications service or in connection with any Customer Application that allows End Users to place calls or to receive calls from any public switched telephone network; (v) use the SERVICES for materials or activities that are subject to the International Traffic in Arms Regulations (ITAR) maintained by the United States Department of State; or (vi) use the SERVICES in a manner that breaches, or causes the breach of, Export Control Laws.
4.4 Copyright. TECHS4BIZ provides information to help copyright holders manage their intellectual property online, but TECHS4BIZ cannot determine whether something is being used legally without input from the copyright holders. TECHS4BIZ will respond to notices of alleged copyright infringement and may terminate repeat infringers in appropriate circumstances as required to maintain safe harbor for online service providers under the U.S. Digital Millennium Copyright Act.
5. RIGHTS OF USE AND ACCESS
5.1 TECHS4BIZ grants the CUSTOMER a non-transferable, non-exclusive license to use and access the SERVICES during the Term of the Agreement. The SERVICES are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. All rights, title and interests not expressly granted to the CUSTOMER are reserved by and for TECHS4BIZ.
5.2 TECHS4BIZ shall use commercially reasonable efforts to make the SERVICES available 24 hours a day, 7 days a week, except for: (a) planned downtime, or (b) any unavailability caused by circumstances beyond TECHS4BIZ reasonable control, including without limitation, acts of God, acts of government, floods, fires, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or denial of service attacks.
5.3 TECHS4BIZ shall maintain appropriate administrative, physical, and technical safeguards for protection of the security, confidentiality and integrity of CUSTOMER Data. This protection also extends to trusted third parties TECHS4BIZ works with to provide the Services.
5.4 CUSTOMER shall (i) be responsible for users’ compliance with this Agreement, (ii) use commercially reasonable efforts to prevent unauthorized access to or use of the SERVICES, and notify TECHS4BIZ promptly of any such unauthorized access or use, and (iii) use the SERVICES only in accordance with applicable laws and government regulations.
5.5 The CUSTOMER shall not:
5.5.1 use the SERVICES in an unlawful manner;
5.5.2 make the SERVICES available to anyone other than authorized Users;
5.5.3 use the SERVICES to send or distribute any messages, materials, or content that may be considered to be unlawful;
5.5.4 reverse engineer, decompile, disassemble, or allow the same to occur to the SERVICES, in whole or in part;
5.5.5 sell, rent, lease, distribute or resell access to the SERVICES or any services or software associated with or derived from the SERVICES, unless the CUSTOMER obtains TECHS4BIZ’ written permission in advance;
5.5.6 copy, frame or mirror any part or content of the SERVICES, other than copying or framing on the CUSTOMER’s own intranets or otherwise for the CUSTOMER’s own internal business purposes;
5.5.7 attempt to gain unauthorized access to the SERVICES or to related systems or networks;
5.5.8 access the Services in order to build a competitive product or service or copy any features, functions or graphics of the Services, or use the SERVICES for Competitive Purposes.
5.6 CUSTOMER expressly affirms that CUSTOMER is not currently and has no intentions of using the SERVICES to work on the development, testing, support, marketing, pricing, or any other function or feature of a SERVICES that is directly or indirectly competitive with the SERVICES and/or TECHS4BIZ. Any such action will be considered a material breach of this Agreement and the CUSTOMER shall be obligated to immediately stop using the SERVICES and to immediately notify TECHS4BIZ in writing that such actions have been taken. CUSTOMER acknowledges that use as described in this section would cause irreparable harm and significant injury, the degree of which may be difficult to ascertain.
5.7 Suspension of Service and Acceleration. If any amount owing under this or any other agreement for SERVICES is 30 or more days overdue, TECHS4BIZ may, without limiting TECHS4BIZ’ other rights and remedies, accelerate CUSTOMER unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend TECHS4BIZ services until such amounts are paid in full.
5.8 Suggestions. TECHS4BIZ shall have a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into the SERVICES any suggestions, enhancement requests, recommendations or other feedback provided by CUSTOMER, including Users, relating to the operation of the Services.
The CUSTOMER acknowledges that it is responsible for determining the suitability of SERVICES for its purposes. TECHS4BIZ does not make any representations or warrant that the SERVICES will meet the particular needs of the CUSTOMER.
7. DATA STORAGE IF APPLICABLE
While TECHS4BIZ will use all commercial reasonable endeavours to ensure that the CUSTOMER’s data as hosted by TECHS4BIZ is protected from unauthorized access during the Term of this Agreement, the CUSTOMER acknowledges that to the extent permitted by law, TECHS4BIZ will not be liable (whether in contract, tort including negligence, statute or otherwise) for any unauthorized access, misuse, corruption or loss of any of the CUSTOMER’s materials or data.
8. SCHEDULED UPDATES
From time to time upgrades to hardware and/or software may be required, and where possible such upgrades will be performed outside of business hours. The CUSTOMER will be notified as far as practicable in advance of such upgrades via email or telephone in advance of any scheduled outage.
9. SERVICE LEVEL
The targeted minimum service level is 99.9% uptime each month (the “Service Uptime”). The Service Uptime will be measured by TECHS4BIZ and its determination is final. TECHS4BIZ will not be liable for any loss or damage which may result from any interruptions, delays, faults or errors in the supply of the Services.
10. INTELLECTUAL PROPERTY
All rights, title, interests, and copyrights in and to the SERVICES, including but not limited to any images, photographs, animations, video, audio, music, text, and “applets” incorporated into the SERVICES, the accompanying printed materials, and any copies of the SERVICES are owned by and are exclusively the property of TECHS4BIZ. CUSTOMER agrees that all intellectual property rights and other ownership rights in any ideas, modifications or suggestions it proposes or creates relating to the SERVICES are hereby assigned to TECHS4BIZ and shall be the sole and exclusive property of Techs4Biz.
All title and intellectual property rights in and to the content that may be accessed through use of the SERVICES are the property of the respective content owner(s) and may be protected by applicable copyright or other intellectual property laws and treaties.
11. CONFIDENTIAL INFORMATION
The SERVICES supplied hereunder are confidential. The structure, organization and usage of the SERVICES are the valuable trade secrets and confidential information of TECHS4BIZ. During the Term of this Agreement and for 3 years afterward, CUSTOMER will protect and hold such SERVICES in strictest confidence. CUSTOMER will not disclose such SERVICES to third parties, in whole or in part, without the prior written consent of Techs4Biz.
During the Term of this Agreement and for 3 years afterward, TECHS4BIZ will use reasonable care to prevent the unauthorized use or dissemination of the CUSTOMER’s confidential information. Reasonable care means at least the same degree of care TECHS4BIZ uses to protect its own confidential information from unauthorized disclosure.
Confidential information is limited to information clearly marked as confidential or disclosed orally that is treated as confidential when disclosed and summarized and identified as confidential in a writing delivered to TECHS4BIZ within 15 days of disclosure. The CUSTOMER’s confidential information does not include information that:
(a) TECHS4BIZ knew before the CUSTOMER disclosed it;
(b) Is or becomes public knowledge through no fault of TECHS4BIZ;
(c) TECHS4BIZ obtains from sources other than the CUSTOMER who owe no duty of confidentiality to the CUSTOMER; or
(d) TECHS4BIZ independently develops.
12. IMPLIED TERMS
To the extent permitted by law, all conditions or warranties which would otherwise be implied, are hereby excluded. Where legislation implies in this Agreement any condition or warranty, and that legislation avoids or prohibits provisions in a contract excluding or modifying the application of or exercise of or liability under such condition or warranty, the condition or warranty shall be deemed to be included in this Agreement.
13. GENERAL PROVISIONS
13.1 Export Compliance. The SERVICES may be subject to export laws and regulations of the United States, Canada, and other jurisdictions. CUSTOMER represents that it is not named on any U.S. government denied-party list. CUSTOMER shall not permit Users to access or use the SERVICES in a U.S.-embargoed country (currently Cuba, Iran, North Korea, Sudan or Syria) or in violation of any U.S. export law or regulation.
13.2 Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
TECHS4BIZ makes no warranties, express or implied, and expressly disclaims any and all implied warranties of merchantability and fitness for a particular purpose and titles, with regard to the SERVICES, and the provision of or failure to provide support services. TECHS4BIZ does not make any warranties or representations that the operation of the SERVICES will be uninterrupted or error free.
15. LIMITATION OF LIABILITY
In no event will TECHS4BIZ be liable for any injury, loss of life, loss of productivity, interruption or loss of service, loss of profits, loss of sales, loss of data, loss of savings, indirect, special, consequential, indirect, or other similar or any damages arising out of any breach of this Agreement or obligation under this Agreement even if TECHS4BIZ has been advised of the possibility of such damages. In no event shall TECHS4BIZ be liable or for any claims against the CUSTOMER by any party. The aforesaid limitation of TECHS4BIZ’ liability shall also apply to all defects/mistakes in: (i) software or hardware; (ii) TECHS4BIZ programmed data; or (iii) defects which result from installation by TECHS4BIZ. Under no circumstances shall TECHS4BIZ be liable for any damages resulting from failure of the SERVICES to comply with specifications of any local government authority. CUSTOMER is responsible for determining the applicability of any local laws or regulations with respect to use of supplied SERVICES and shall also inform TECHS4BIZ thereof in writing prior to installation or use. Any additional cost associated with compliance with such laws or regulations shall be borne by the CUSTOMER.
In no event will TECHS4BIZ be liable (whether in contract, tort including negligence, statute or otherwise) for any third party claims, loss of data, loss of time, loss of profits, loss of savings, loss of contracts, loss of revenue, loss of interest, or loss of goodwill, which may be suffered or incurred by the CUSTOMER arising in any way from the use of the SERVICES or any associated good or services provided by TECHS4BIZ pursuant to this Agreement or otherwise resulting from any act or omission of TECHS4BIZ.
16. BINDING AGREEMENT
The AGREEMENT shall be binding upon the CUSTOMER and its heirs, legal representatives, successors, and assigns and shall inure to the benefit of TECHS4BIZ, its successors, legal representatives and assigns.
17. ENTIRE AGREEMENT
This is the entire agreement between TECHS4BIZ and the CUSTOMER relating to the licence of the SERVICES and it supersedes any prior representations, discussions, undertakings, communications or advertising relating to the SERVICES. If any term or part of this EULA or the Agreements should be declared invalid or unenforceable by a court of competent jurisdiction, the remaining terms of this EULA or the Agreements shall be unimpaired, and the invalid or unenforceable term shall be replaced by such valid term that comes closest to the intention underlying the invalid term.
This Agreement shall be governed by and construed in accordance with the laws of the province of Ontario, Canada and the parties agree that the Courts shall have sole jurisdiction to entertain any action in respect of, or arising out of, this Agreement.
Each party hereby waives any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.